Mixed Race Studies

The Obama Effect: Understanding Emerging Meanings of “Obama” in Anti-Discrimination Law

Indiana Law Journal
Volume 87: Issue 1 (Spring 2012)
pages 328-348
Symposium: “Labor and Employment Under the Obama Administration: A Time for Hope and Change?”

Angela Onwuachi-Willig, Charles and Marion Kierscht Professor of Law
University of Iowa

Mario L. Barnes, Professor of Law
University of California, Irvine

Panel 6: Employment Law: Antidiscrimination Law Under a Black President in a “Post-Racial” America?

The election of Barack Obama to the U.S. presidency on November 4, 2008, prompted many declarations from journalists and commentators about the arrival of a post-racial society, a society in which race is no longer meaningful. For many, the fact that a self-identified black man had obtained the most prominent, powerful, and prestigious job in the United States symbolized the end of an era in which Blacks and other racial minorities could make legitimate claims about the harmful effects of racism. In fact, on the night of the election, conservative talk show host Bill Bennett proclaimed that Blacks would have no more excuses for any failures or unattained successes. Black actor Will Smith essentially agreed with Bennett, proclaiming the following: “I love that all of our excuses have been removed. African-American excuses have been removed. There’s no white man trying to keep you down, because if he were really trying to keep you down, he would have done everything he could to keep Obama down.”

Along the same lines, many conservatives pointed to Obama’s election as a symbol of a racism-free society when they initiated constitutional challenges to the Voting Rights Act of 1965. Despite the fact that Obama had earned only one in four votes from Whites in areas covered by section 5 of the Act while earning nearly half of all votes from Whites nationally, Texas lawyer Gregory Coleman argued that the Voting Rights Act was basically irrelevant in today’s society; to him and other conservatives, Obama’s election as president demonstrated as much. Coleman declared, “The America that has elected Barack Obama as its first African American president is far different than when [the Voting Rights Act] was first enacted in 1965.”

Overall, many pondered whether Obama’s election signaled a new day for Blacks. The fact that Obama was biracial only made the symbolism stronger. The son of a black Kenyan father and a white mother from Kansas, Obama represented a break from our nation’s troubled past with race and racism, not just because of his ability to become president but also because of his individual racial background.

In this Article, we explore the proclamations that have been made about an emerging “post-racial” society within the context of workplace anti-discrimination law. Specifically, as the title of our panel for this symposium asks, we inquire: What is the significance of having a biracial, black-white president (or more specifically, the first self-identified black president) to the enforcement of anti-discrimination law? What impact, if any, has President Barack Obama’s campaign for the presidency and election as president had on discrimination in the workplace?

Based in part on our review of discrimination cases in which President Obama’s name has been invoked—in most cases, either to demean minority workers or with an otherwise discriminatory purpose—we conclude that having a biracial, black-white (or self-identified black) president has had a surprising effect on the enforcement of anti-discrimination law. Indeed, we contend that Obama’s campaign and election have, to an extent, had an unusual effect in the work environment. Rather than revealing that racism is over or that racial discrimination is diminishing in the workplace, Obama’s presence and prominence have developed a specialized meaning that ironically has resulted in an increase in or at the very least a continuation of regular discrimination and harassment within the workplace. In fact, our review of a number of anti-discrimination law cases filed during the political ascendance and election of Obama suggests that, within certain contexts, individuals have made references to Obama in ways that demonstrate racial animus against Blacks and those associated with Blacks or as a means for explaining why offending conduct toward racial minorities does not involve discrimination. In other words, in these contexts, the term “Obama” itself has become a new tool for racial harassment and discrimination as well as a new tool for denying the reality of racism…

Read the entire article here.

The Impact of the Obama Presidency on Civil Rights Enforcement in the United States

Indiana Law Journal
Volume 87: Issue 1 (Spring 2012)
Symposium: “Labor and Employment Under the Obama Administration: A Time for Hope and Change?”

Joel Wm. Friedman, Jack M. Gordon Professor of Law
Tulane University Law School

Panel 6: Employment Law: Antidiscrimination Law Under a Black President in a “Post-Racial” America?

On Friday, August 4, 1961, police officers in Shreveport, Louisiana, arrested four African American freedom riders after the two men and two women refused to accede to the officers’ orders to exit the whites-only waiting room at the Continental Trailways bus terminal. Four thousand miles away, in the delivery room at Kapi’olani Maternity & Gynecological Hospital in Honolulu, Hawaii, Stanley Ann Dunham, a Kansas-born American anthropologist whose family had moved to the island state twenty years earlier, gave birth to the only child that she would have with her first husband, Barack Obama Sr., an ethnic Luo who had come to Hawaii from the Nyanza Province in southwest Kenya to pursue his education at the University of Hawaii. Just over forty-seven years later, on November 4, 2008, their son, Barak Obama II, a mixed-race man who identifies as black, was elected the 44th president of the United States.

The election of the nation’s first African American president was hailed as an event of historic importance. Many heralded Obama’s victory as signaling the dismantling of “the last racial barrier in American politics.” Analogies were quickly and frequently drawn to the historic moment when Jackie Robinson became the first African American player in Major League Baseball. This superficially obvious comparison, however, diminished the causal significance of Obama’s election. When Jackie Robinson left the Kansas City Monarchs of the Negro Leagues on October 23, 1945, to sign a contract with the Brooklyn Dodgers, and then made his debut on a major league diamond at Ebbets Field on April 15, 1947, he breached the unofficial, but rigidly enforced exclusionary “color line” in professional baseball. But this momentous event was the product of a courageous and visionary decision by one man—Branch Rick[e]y, the part-owner, president, and general manager of the Brooklyn Dodgers. Obama’s election triumph, on the other hand, was the result of millions of individual determinations to vote for an African American candidate for the nation’s highest office.

Beyond the unique historical aspect of Obama’s election triumph, the results of the 2008 presidential election were interpreted by many as marking the onset of a new era of American “postracialism.” For example, much was made of the fact  that in Virginia, home of the Confederacy’s capital city, Obama amassed more votes than his Caucasian opponent. Many analysts concluded that the voters’ comparative assessments of each candidate’s ability to deal with the nation’s economic woes, and not his racial classification, were a crucial determinant in their decisions in the voting booth. They pointed to the fact that Obama’s 8.5 million vote margin of victory was, in part, the result of his receipt of 40% of the votes cast by white men, a higher share than had been garnered by any of the five previous (white) Democratic presidential nominees…

Read the entire article here.

“White Latino” Leaders: A Foregone Conclusion or Mischaracterization of Latino Society

The Modern American
Volume 3, Issue 2 (Summer-Fall, 2007)
Article 11
pages 62-65

Eric M. Gutierrez

Am I white? My personal inquiry into race begins with a school picture of a six-year-old boy. My dark brown hair, parted to one side, falls impishly over half-cocked eyebrows. My eyes, more almond-shaped than oval, are a murky blue with green speckles. My nose, a thicker version of the traditional aquiline Roman contour, fades into a tiny bulbous tip. My smile, close-mouthed and askance. My skin, white, even with a faded summer tan.

If I am white, whether I have claimed it or not, has it afforded me the privileges of a racial hierarchy skewed towards the dominant white culture? Moreover, has my apparent skin color placed me in a leadership role in the Latino community based merely on society’s perception of what that race is? Will that perception imply that I will turn my back on the Latino community that raised me, opting instead for the spoils of an influential white power structure?

In this article I consider the arguments presented by Ian Haney López in his essay entitled “White Latinos” and analyze the validity of his statements on white Latino community leaders. I examine and challenge López’s assertions regarding the characterization of Latino leaders, generally; and his description of an emerging Latino culture identified as “Mexican Americans,” the “Brown Race,” and the “New Whites,” specifically.

The most crucial assertion by López is that white Latino leaders are the most prevalent and influential in Latino society and that by emphasizing their whiteness as a key component of their identity, they facilitate the mistreatment of Latinos and buttress social inequality. Although I agree with many of López’s assertions about white Latino leaders, I believe the aforementioned assertion is a mischaracterization of Latino leadership and neglects to consider the cultural values from which these leaders arise…

Read the entire article here.

White Latinos

Harvard Latino Law Review
Volume 6, Number 1 (Spring 2003)
8 pages

Ian Haney Lopez, John H. Boalt Professor of Law
University of California, Berkeley

Who are the leaders in Latino communities? This question does not admit simple answers, for who counts as a leader and what Latino identity entails are both contentious issues. Having said that, I contend that often Latino leaders are white. I employ this hyperbole to emphasize my point that most of those who see themselves as leaders of Latino communities accept or assert whiteness as a key component of their identity. This assertion of whiteness, I argue here, facilitates the mistreatment of Latinos and buttresses social inequality. In this Essay I use the experience of Mexican Americans and the Chicano movement to illustrate this dynamic, and also comment on the aspiration to be white in the context of contemporary racial politics.

I. WHITE LATINO LEADERS

The majority of those who consider themselves leaders in Latino communities are white. I do not contend by this that race is fixed or easily ascertained. Nor do I mean that the Latino community is led by Anglos—that is, by persons from the group hstorically understood as white in this country. Rather, Latino leaders are often white in terms of how they see themselves and how they are regarded by others within and outside of their community. Race’s socially constructed nature ensures that racial identity is formed on multiple, sometimes contradictory levels. Self-identification, group perception, and external classification all constitute axes of racial construction. In turn, these axes encompass myriad criteria for determining racial identity. In this context, many Latino leaders believe they are—and are understood to be—white by virtue of class privilege, education, physical features, accent, acculturation, self-conception, and social consensus. True, these Latinos are rarely white in the sense that they are accorded the full range of racial privileges and presumptions Anglos reserve for themselves. But then, as with all racial categories, there are various shades of white, and many Latino leaders are arrayed along this continuum…

Read the entire essay here.

Spotlight on Jon Veilie: A Man on a Thirteen Year Mission

The Modern American
Volume 1, Issue 1 (Spring 2005)
Article 8
pages 22-23

Lydia Edwards

It all started one month after he passed the bar. Sylvia Davis, a black Seminole, came to Jon for help. She had been to many lawyers already. She told Jon Velie her story about how her 13 year old son was denied clothing benefits because he is black. “It hit me as obviously wrong. So I naively took the case on a contingency basis not knowing there would be no real payment. I naively thought I could inform the Bureau of Indian Affairs (BIA) and the tribe they missed this.” What Jon really stepped into was something like the uphill civil rights battles of the 1960s. “It was straight up racism in conversations with the involved parties including the tribe and BIA; the ‘N word’ was thrown all around.” For his entire legal career, Jon Velie has sought to bring justice to Ms. Davis and other black Seminoles as well as black Cherokees.

BACKGROUND INFORMATION

Jon Velie graduated from University of Oklahoma Law School in 1993. As an undergraduate at U.C. Berkeley he was a Native American studies major. During law school he was a research assistant for Rennard Stickland, a renown Indian Law scholar who is now Dean of Oregon Law School. Before attending U.C. Berkeley, Jon had already developed an affinity for Native American issues. As a child he grew up in the Absentee Shawnee tribal community. Many of his friends were from the tribe and he was exposed to sacred activities otherwise unseen by outsiders. His father, Alan Velie, taught the first course in contemporary Indian studies.

Alan Velie was a Shakespearean professor at the Oklahoma University in the 1970s in the midst of the American Indian rights movement when he was approached by Native American students and agreed to teach a course on American Indian literature. At the time, all the courses taught about Native Americans were concentrated on the past and more in the anthropological sense. He now travels the world talking about Native American literature and has written seven books on the subject.

WHO ARE THE BLACK INDIANS?

Unbeknownst to most Americans, the Five Civilized Tribes (Choctaw, Chickasaw, Cherokee, Seminole, and Creek) have had long traditions of African membership and enslavement. The Cherokee, Creek, Choctaw and Chickasaw tribes had a form of African slavery that closely mirrored that of Southern white plantation owners. The Seminole tribe, however, has had a unique relationship with its African members. The Seminole tribe and its African members (commonly referred to as Freedmen Freedmen) have coexisted together since the 16th Century. Many slaves of white plantation owners ran away to live with the Seminole tribe. Both Seminole Wars were fought over the number of runaway slaves who lived with the tribe. African members could intermarry and take on positions of leadership. Many served as translators between the Spanish, the tribe, and southern white plantation owners.

During the Civil War, the Five Civilized Tribes fought with the Confederacy against the Union. After the war, all of the tribes signed treaties with the United States government in order to maintain their sovereignty and reinstitute an autonomous government. In all of their treaties, there were clauses ordering the tribes to free their slaves and treat them and their descendants equally. Over the years, Congress and the courts have enforced the treaties to assure equal rights for the black Indians. In the late 1800s and early 1900s, Congress set up the Dawes Commission to record all the members of respective Indian Tribes. Their records are called the Dawes Rolls. The commission recorded black Indians on separate rolls for all of the tribes. Cherokees and Seminoles that were ¾ white were recorded on a “full blood” list while their black members were enrolled on the Freedmen list. The quantity of Indian blood of each black Indian was not recorded by the Dawes Commission…

Read the entire article here.

Virginia Bastardy Laws: A Burdensome Heritage

William and Mary Law Review
Volume 9, Issue 2 (1967)
Article 8
pages 402-429

Dominik Lasok, Professor of Law
University of Exeter

The theory that British settlers brought with them as much of the common Law of England as was appropriate to their circumstances in the New World, propounded by judges’ and scholars of the past, rings true because it is a general statement and flexible; and is hardly concerned with the quantum of the law actually adopted. Indeed no detailed evaluation has been attempted. It seems that such an evaluation would show that in some areas the connection between the colonies and the mother country should be a source of pride for both countries, but in others only an embarrassing and burdensome heritage. Virginia bastardy laws seem to fall into the latter category.

A comparative study of the law of bastardy of England and Virginia demonstrates a curious affinity at the source and throughout the evolution of the two systems. In some respects the law of Virginia outpaced that of the mother country, yet when English law took a turn towards a modern outlook during the fourth quarter of the last century the law of Virginia not only stopped in its tracks but, one might say, lapsed into the primitiveness of the common law doctrine…

…Marriage and Children’s Status

From the very start the inadequacy of the English law of marriage became manifest as it was necessary, as early as 1628, to make a proclamation forbidding marriage “without license, or asking in church.” In contrast the English, as we have noted earlier, muddled through the uncertainty of marriage laws and the mischief of clandestine marriage until the passing of Lord Hardwicke’s Act of 1753. Another mischief, that of the clandestine marriage of infants, which lingered in England well into the 20th century was soon brought to an end by the General Assembly, which provided that “… . minors under 21 cannot be married without consent of their parents or guardians given personally or by sufficient testimony. …”

Official registration of births, deaths and marriages was introduced in England as late as 1836. Prior to that date parish registers were the only reliable source of information on human pedigree, but the system was entirely voluntary. Official registration was introduced in Virginia by the General Assembly of 1631-1632. The duty of keeping appropriate registers was imposed upon the ministers of the Church and church wardens and backed by a penal sanction.

Having put the formalities of marriage on a sound legal basis the early Virginians laid foundations for a clearly definable status of the offspring. Thus where man and woman were united in matrimony in a public and solemn ceremony preceded by license or publication of banns, such ceremony being duly recorded, there was no reservation about the legal status of children born to such a woman. Subsequent invalidity of the marriage did not upset the status of children, but quite clearly offspring of concubinage could not benefit as the doctrine of common law marriage was purposely repudiated. Correspondingly children of “unmarried” mothers were illegitimate. Rebuttal of the presumption of legitimacy was not unknown as the records of 1640 show an instance of bastardizing a child born to a married woman by a simple device of a confession made under oath by the mother to a midwife. The child was, by virtue of the confession, adjudged to be of “another man.”…

Morality by the Act of the Assembly

The law was clearly set against extra marital relations. The early acts were very much concerned with the moral welfare of the individual. A church was instituted, whose ministers were to conform to the canons of the Church of England, whilst the faithful were liable to punishment for being absent from divine service.The orthodoxy of the Church of England and the uniformity of worship throughout the colony was later secured by law which ordered the ministers to preach the doctrine of the Church of England, the deportation of “popish priests,”  disablement of “popish recusants” from holding any offices ” and the suppression of Quakers.

The duty of bringing up children in Christian religion (of the recognized brand) was first imposed upon guardians of orphans, and later extended to “masters of families,”  who incurred penalties for failing to send their children “to be instructed and catechised” by the minister of the established church.

Where the preaching and positive enactments bidding the individual to lead a chaste and God-fearing life failed the law reacted with anger and severity. Stern measures, adopted from England, were to combat crime and repress adultery and fornication. Church wardens were charged with the presentment of such offenses not only from their own knowledge but also from information of others. To make sure that they did their duty a penalty was provided against the defaulter.

Clearly such measures were intended to strengthen the lawful family and discourage extra-marital commerce. But even so the stern arm of the law could not control the flesh absolutely. The minutes of the Judicial Proceedings of the Governor and Council of Virginia, dated September 17, 1630, reveal that one Hugh Davis was ordered to be “soundly whipped” before an assembly of Negroes and others for “abusing himself to the dishonor of God and shame of Christians by defiling his body in lying with a negro, which fault he is to acknowledge next Sabbath Day … .” ” No doubt the punishment and its execution was devised to purge and deter but the record reveals a deeper motive to be consummated in the doctrine and law against miscegenation.

Hugh Davis having expiated his crime seems to have incurred no liability to his partner. However, a certain Edward Grymes, “because he lay with Alice West,” was ordered to give security “not to marry any woman till further order from the Governor and Council.” Presumably Alice was a white woman as there is no mention of exemplary flogging and the lady’s name is revealed. Maybe incapacity to “marry any woman” (or should it be any other woman?) until further order imposed upon Grymes was a punishment of a kind, in which case Alice got off rather lightly; maybe it was a preventive measure to ensure that Alice was not left with a bastard child and without a prospect of marrying the child’s father. The absence of further record may perhaps be taken to mean a happy ending for all concerned.

Not so happy was the lot of an unnamed Negro woman who was ordered to be whipped, while her partner in crime, a certain Robert Sweet, was ordered to “… . do penance in Church according to laws of England for getting a negro woman with child …. ,, The reference to English law is obscure, to say the least, but here repression and racial discrimination can be seen at work in a sinister partnership…

…Marriage and the Status of Children

As in the previous period the formal validity of marriage took a substantial share of the legislation, but in addition the essential conditions of a valid marriage were also settled. Following the established principle marriage could be celebrated only by ministers of the recognized church “according to English law,” but unlike in England, the solemnities had to be preceded by a license issued from the civil authority or banns read in church. The sanction for non-compliance was severe. The officiating minister was liable to punishment, the pretended marriage was null and void, children of such a union were visited with the stigma of illegitimacy, and the parties themselves were liable to prosecution for fornication. Certificates for marriage of persons under age were valid only if issued by the clerk of the county where the parents or guardians were resident and the clerk could issue such certificates only with the personal consent of parents or guardians…

…Legislation concerned with the essential validity of marriage began characteristically with an “Act for suppressing outlying slaves.”  The measure was penal and repressive as the Act provided, inter alia, that “white man or woman, bond or free, intermarrying with a Negro, mulatto or Indian is to be banished for ever.” The foundation of the antimiscegenation law being laid down earlier the Act did not expressly pronounce upon the validity of such marriages, but there is no doubt that the sanction of nullity was written in the peremptory words of the statute…

…Servants, Bastards and the Poor

It is significant that a direct reference to illegitimate children should be found in the Act 0 dealing with the suppression of fornication among servants, and the poor law system. Thus the compass of the legislation tends to reflect the character of bastardy law as being concerned not so much with the legal status of the illegitimate child and his relations with his parents, but with bastardy as a social problem confined to servants and the poor.

During the 1661-621 session, the General Assembly decreed, in an Act against fornication among servants, that the child is bond or free according to the status of his mother; and that if there is a child as a result of fornication the mother must serve two years after her indenture or pay 2,000 lbs. of tobacco to her master in addition to a fine or physical punishment (whipping) for the offense. The reputed father had to put in a security to keep the child and so indemnify the parish, which was responsible for the upkeep of poor persons. Inadvertently the Assembly played into the hands of the unscrupulous masters who could thus derive a benefit of extra 2 years of service out of fornication with their female servants. This the Assembly sought to remedy a year later by providing that such a woman should be sold by the churchwardens of the parish where she lived at the time she gave birth to her child for two years after the expiration of her indenture, and that the money so raised should be employed for the benefit of the parish. The possibility of her being released must have been considered by the Assembly as they thought that such a provision would induce such women “… to lay all their bastards to their masters. . . .”  So, for the time being, the severity of the law focused on the mother and the child.

It was considered that the father’s punishment consisted in the keeping of the child which meant in practice that he had to defray the expenses incurred by the parish. However, it was not always possible to exact payment from the putative father especially if he was a servant. To meet this contingency the Act provided that the parish should keep the child during the father’s service, and that he would defray the expenses after the expiration of his indenture.”

The selling of the servant woman by the churchwardens must have proved rather cumbersome as in 1696 the law was brought back to the original. The penalty was halved as the woman was required to put in another year of service after the expiration of her indenture or pay 1,000 lbs. of tobacco to her master or mistress in addition to her punishment for fornication. The putative father was, as heretofore, required to provide a security “to keep the parish harmless.”

This law was substantially re-enacted in 1705 in an Act concerning servants and the rights and duties of masters. Furthermore it was provided that if the reputed father was free he had to give security to the churchwardens to maintain the child. It was enacted, for the first time, that he may be compelled to do so by order of the county court upon the complaint of churchwardens. By the same Act the county courts were invested with the jurisdiction to try “…. petty offences including fornication, bastardy and the like … .” Thus the English statute of Elizabeth I became reincarnated in the colony.

The previous law with regard to the reputed father being a servant was reinforced by like provision enabling the court to enforce its order. The Assembly turned also to the question of female servants getting illegitimate children by their masters. The law once more turned a somersault as it reverted to a formula once used and discarded, that is, that the mother would be sold for one year after the expiration of her indenture or by order of the court made to pay 1,000 lbs. of tobacco and the said fine or whatever she should be sold for would then be turned to the use of the parish. The master, if the father of the child, would as previously suffer punishment for fornication and pay for the upkeep of the child. In addition the indenture may be terminated by court order.

A stiffer penalty was provided for a woman servant (or a free woman) having an illegitimate child by a Negro or mulatto:

. . . And if any woman servant shall have a bastard child by a negro or mulatto, over and above the years service due to her master or owner, she shall immediately upon the expiration of her time to her then present master or owner, pay down to the churchwardens … 15 pounds current money in Virginia, or be by them sold for 5 years to the use of the aforesaid. And if a free Christian white woman shall have such bastard child by a negro or mulatto, for every such offence, she shall within one month after her delivery of such bastard child, pay to the churchwardens for the time being, for the use of the said parish 15 pounds current money of Virginia, or be by them sold for 5 years to the use of the aforesaid ….

The unfortunate child was to be punished too as the churchwardens were empowered to bind him “… to be a servant until he shall be of thirty-one years of age.”…

Read the entire article here.

Miscegenation: The Courts and the Constitution

William and Mary Law Review
Volume 8, Issue 1 (1966)
Article 7
pages 133-142

Cyrus E. Phillips IV

MISCEGENATION: THE COURTS AND THE CONSTITUTION

Miscegenation is generally defined as the interbreeding or marriage of persons of different races, but the term will here be used in reference to miscegenetic marriages only. That is, this paper will concern itself only with the aspects of the marriage laws of various states that relate to miscegenation. The purpose of this paper will be to show the antecedents of miscegenation in the American legal system, the methods of constitutional justification of miscegenation statutes in state courts, and the change in regard to their validity given by the federal judiciary.

BACKGROUND

Prohibitions against miscegenation date back to the earliest colonial times, and the first record of sanctions imposed for this act in the Virginia colony appears in Hening’s extract from the judicial proceedings of the Governor and Council of Virginia:

September 17th, 1630. Hugh Davis to be soundly whipped, before an assembly of negroes and others for abusing himself to the dishonor of God and shame of Christians, by defiling his body in lying with a negro; which fault he is to acknowledge next Sabbath day.

That prohibitions against miscegenation have been widespread in the United States can be seen in the fact that they have appeared in the statutes of some forty states. Of these forty, twenty-three have repealed their statutes, half of these having been repealed within the last two decades as a result of the movement for Negro equality as well as the publicity occasioned by a 1948 decision of the California Supreme Court which struck down that state’s miscegenation statute.

Nontheless, it is indeed surprising that seventeen states still retain their miscegenation statutes. Of these seventeen states, six make express provisions in their constitutions either forbidding the passage of laws validating such marriages or else maling them void ab initio. Miscegenation is an entirely statutory crime, generally considered to be of the grade of a felony, the penalty for which ranges up to imprisonment for ten years and fines up to $2,000.

All miscegenation statutes contain general provisions against the intermarriage of Negroes and Caucasians, but others have expanded their scope to include Malays, American Indians, Mestizos, and Half-breeds. Although these statutes in the main do not prohibit intermarriage between members of races other than white, all prohibit intermarriage between a white person and a member of the designated non-white group or groups.

And just as the groups with which intermarriage is prohibited vary from state to state, so also does the definition of “Negro.” One state classifies a Negro as any person of one-eighth or more Negro blood, while others define Negroes as any person of Negro descent to the third generation inclusive.”‘ Two states include every person in whom there is any ascertainable Negro blood within the prohibited group. That these statutes are an anomaly in this period of constitutional and social reform is readily apparent. Nevertheless, their antecedents run deep in the American legal system…

Read the entire article here.

Present Status of Miscegenation Statutes

William and Mary Law Review
Volume 4, Issue 1 (January 1963)
Article 4
pages 28-35

Edmund L. Walton Jr., Founder
Walton & Adams, P.C., Reston, Virginia

With the influx of so called “civil rights” cases in recent years it seems that a reappraisal of state legislation and constitutional prohibitions concerning intermarriage of persons of different races is in order.

A total of twenty-four states currently have prohibitions against miscegeneous marriages, fourteen more have repealed such laws, and the supreme courts of two states have held that their miscegenation statutes are in violation of the Fourteenth Amendment of the United States Constitution but one of these reversed itself five years later. The highest courts of twelve other” states have affirmed the constitutionality of their respective statutes.  The Supreme Court of the United States has once had the opportunity to rule upon the question in recent years but sidestepped the issue.

The statutes, while varied in scope and legal consequences for violation are unanimous in condemning marriage between Negroes and whites. Three representative statutes are those of Virginia, Maryland, and Arkansas. Both Maryland and Virginia have criminal penalties as well as civil prohibitions and both declare the parties to a miscegenous marriage to be felons. Arkansas declares such a marriage to be illegal and void.” Virginia prohibits the marriage of whites with colored persons;  Arkansas, white persons with Negroes or mulattoes; and Maryland forbids any intermarriage between members of the white, Negro or Malayan races. Virginia describes a “white person” as one with no other admixture of blood other than white or one-sixteenth or less American Indian blood.

The challenge of the constitutionality of these and other state miscegenation statutes has been made and met in the state courts, but as yet the United States Supreme Court has not seen fit to make a final judgment. What are the major factors to be discussed and when will the court meet the challenge?…

Read the entire article here.

Race and American Indian Tribal Nationhood

February 2009
44 pages

Matthew L. M. Fletcher, Professor of Law & Director of the Indigenous Law & Policy Center
Michigan State University

Forthcoming in a 2011 University of Wyoming Law Review issue.

American Indian tribes and nations are at a crossroads. One on hand, many tribes like the Cherokee Nation—mired in the politics and law of disenfranchising the Cherokee Freedmen—continue to hold to a citizenry based in race and ancestry. Federal Indian law tends to protect, and encourage, even the worst abuses of this regime. The United States long has adopted Indian blood quantum as a proxy for tribal citizenship, creating unfortunate paradoxes for Indian tribes and their citizens. For example, the Supreme Court just a few days ago in Carcieri v. Salazar held against an Indian tribe in Rhode Island on an important land case, perhaps, because the tribe’s citizens did not have significant blood quantum collectively.

But in most other cases, the Court is skeptical of tribal government authority because tribal citizenship is based at least in part on race. This means for the Court, especially Justice Kennedy, that non-Indians by blood or ancestry can never be citizens of an Indian tribes. And the Court worries that a tribal government seeking to assert jurisdiction over these persons somehow violates the social contract.

I argue, perhaps for the first time, that Indian tribes must move beyond race and ancestry as the single most important means of determining tribal citizenship. It will not be easy for Indian tribes to move beyond race and ancestry, but it is necessary if Indian nations wish to move beyond their status as an afterthought in the American constitutional structure and develop into more complete sovereign nations. I suggest several ways for Indian tribes to alter their citizenship criteria and recommend an incremental solution based on immigration law and policy.

Read the entire paper here.

A Race or a Nation? Cherokee National Identity and the Status of Freedmen’s Descendents

bepress Legal Series
Working Paper 1570
2006-08-17
72 pages

S. Alan Ray, President
Elmhurst College, Elmhurst, Illinois

The Cherokee Nation today faces the challenge of determining its citizenship criteria in the context of race. The article focuses on the Cherokee Freedmen. As former slaves of Cherokee citizens, the Freedmen were adopted into the Cherokee Nation after the Civil War pursuant to a treaty with the United States, and given unqualified rights of citizenship. The incorporation of the Freedmen into the tribe was resisted from the start, and now, faced with a decision of the Cherokee Nation’s highest court affirming the descendents’ citizenship rights, the Nation prepares to vote on a constitutional amendment which would impose an Indian “blood quantum” requirement for citizenship. If approved, potentially thousands of African-descended citizens would be eliminated from the tribal registry. In this Article, Professor Ray examines the legal and social history of the Cherokee Freedmen to criticize and reject definitions of Cherokee political identity based on either the federal Dawes Rolls of the allotment era, or notions of “Indian blood.” Both, he argues, are heteronymous authorities for determining tribal citizenship criteria and should be replaced by the critical hermeneutic of indigenous cultural resources. Professor Ray offers a model for constructing tribal citizenship criteria that attempts to deliver ancestry from biology, and law from legal fetishism of the Dawes Rolls. The wise use of sovereignty, he suggests, requires sustained dialogue between Freedmen’s descendents and Cherokees by ancestry, not the “quick fix” of the political process.

Table of Contents

• INTRODUCTION
• I. LUCY ALLEN AND THE CHEROKEE FREEDMEN CONTROVERSY
• II. THE FREEDMEN CONTROVERSY AS A CRISIS OF POLITICAL AND SOCIAL IDENTITY
  • A. A Race or a Nation? Identity by Blood or Base Roll
  • B. Cherokee Identity: Legal Definitions and their Limits
    • 1. Collective Definitions: The Cherokee Nation
    • 2. Individual Definitions: Citizenship in the Cherokee Nation
    • 3. The Limits of Legal Definitions of Citizenship
  • C. Cherokee Identity: Biological Definitions and their Limits
    • 1. The Construction of the “Red” Race
    • 2. The Construction of “Black” by “Red”
    • 3. Cherokee Slavery and Cherokee Nation
    • 4. The Limits of Biological Definitions of Citizenship
  • D. From Biology to Ancestry, From Legal Fetishism to Law
• III. RADICAL INDIGENISM AS A RESOURCE FOR RESOLVING THE FREEDMEN CONTROVERSY
  • A. Foundational Commitments
  • B. Assumptions of the Model
    • 1. Role of Practical Knowledge
    • 2. Relationship to Spiritual Heritage
    • 3. Effective History of Colonization
  • C. Critical Hermeneutics of Ancestry and Reciprocity
    • 1. Relationship to Ancestry
    • 2. Responsibility to Reciprocity
• CONCLUSION

Read the entire paper here.