Mixed Race Studies

Blood Quantum, Race, and Identity in Indian Country

January 2011
32 pages

Sarah Montana Hart, Judicial Clerk
Magistrate Judge Carolyn Ostby
Federal District Court for the District of Montana

This article discusses how blood quantum laws affect racism and other relations between Indian nations and the United States.

1. Introduction

Throughout the history of our country, different levels of “blood quantum” have been required to achieve different levels of status – one drop here, one-half there, and so on. In this way, “[o]ur propensity to sort people into categories has, over the course of history, contributed to immense human suffering.” Depending on the group, its political clout, and the monetary resources at stake, different lines are drawn around or through a group, and only enough “blood” will get you across those different lines. For example, one drop of “black” blood (aka anyone black in your family tree) was enough to make you a member of the “negro” group. However, it took anywhere from one-fourth to one-half “Indian” blood (an Indian parent or a grandparent) to get you into the “Indian” group. In this way, blood quantum has been used to define the boundaries of groups throughout our history.

A closer examination of the history of Indian blood quantum shows, however, that sometimes this boundary drawing was completely arbitrary, based on nothing more than an individual’s appearance. Sometimes the determination of insider/outsider status was also based on the property interest of the powerful class (read: whites). Despite the dubious history of blood quantification, however, the mechanism is still used today by many Indian tribes to determine insider or outsider status. Blood quantum has been adopted by the tribes to determine, for their own purposes, who is considered an Indian and who is not. Thus, blood quantum has been used by tribes to decide tribal membership.

Adoption of blood quantum rules by Indians themselves would be troubling enough, given the imperial and arbitrary history of their early implementation by the U.S. government. What is even more troubling, however, is that even today, blood quantum is used to determine who gets valuable resources – land, money, and preference. Those who are determined, by their blood quantum, to be “Indian” enough are given rights to land, natural recourses, per capita payments, and a number of other valuable assets.

In the United States, however, we have developed a very strong belief in equal protection: no one should be deprived of anything, or get anything extra, based only on the color of their skin, their racial heritage, or their affiliation with a certain group. We take this equality very seriously; people died to make sure that could happen. And yet, Indian tribes today are determining that one tribal member gets a certain amount of government money because they have the right “blood quantum,” while depriving someone who does not have that same “blood quantum” of getting an equal amount of money. To many people, tribal members or otherwise, this determination seems suspect. Given the history of our country, and our tradition of equal protection, should we be suspect of any rule that gives an individual anything on the basis of race alone?

The United States Supreme Court has said, however, that “Indian” is not a racial category. It has determined that Indian blood quantum is a political, rather than a racial determination, and therefore no one is getting anything extra, or being denied anything, based on their race. The Court has carved out Indian blood quantum rules from regular equal protection analysis, and created a troubling legal fiction. By insisting that “Indians” are political, rather than racial beings, the Court ignores both the history and the reality of tribal membership.

This paper argues that this legal fiction is not only absurd, but harmful to Indian interests. Blood quantum is a suspect classification that should be subject to normal equal protection analysis. Part Two of this paper discusses the intellectual concept of “blood quantum” and defines it in the abstract. This discussion and definition show how easily blood quantum rules can be used as arbitrary political tools. Part Three puts this abstract definition into actual historical contexts and shows how Indian blood quantum rules came to exist. The history shows that the rules were based on a disturbing historical precedent, and implemented by the U.S. government with the specific intention of limiting the number of “Indians” who were eligible for land grants. The history also makes it clear that who was determined “Indian” and who was not was the product of a split-second, racial determination by random government officials during a chaotic enrollment process. Part Four shows how, despite the dubious history of blood quantum rules, tribes have increasingly used them to determine tribal membership. Part Five discusses how the U.S. Supreme Court continues to insist that “Indian” is not a racial category, but a political one. The section explains why, in the light of the history and the practical use of blood quantum by tribes today, this is a complete legal fiction.

Part Six discusses why the continued use of blood quantum rules should matter, based on an equal protection analysis. The section explains that maintaining a legal fiction (that “Indian” is not a racial category), actually harms Indian interests, and promotes racism rather than understanding. While blood quantum rules are racial, and should be subject to strict scrutiny, this section also discusses arguments that could be used to overcome that judicial hurdle. The conclusion, in Part Seven, reiterates that discussion about Indian identity, and the benefits or preferences that one can receive as an Indian, should be candidly one of racial distinction. This discussion should also include a justification of policies specifically tailored to advance a compelling tribal and governmental interest in maintaining a trust relationship and righting historical wrongs. If that conversation can occur openly, the racist idea that Indians get special treatment or something for nothing, is addressed head on, and justified through recognizable equal protection standards. This is a far more productive discussion than side-stepping the issue entirely and pretending that race is not a factor in the equation…

Read the entire paper here.

No School Left Behind: Providing Equal Educational Opportunities: Where Have All the Lovings Gone?: The Continuing Relevance of the Movement for a Multiracial Category and Racial Classification After Parents Involved in Community Schools v. Seattle School District No. 1

Journal of Gender, Race & Justice
Volume 11, Number 3, Spring 2008
pages 409-452

Shalini R. Deo, Court Attorney to Hon. Rita Mella
New York City Criminal Court

Shalini R. Deo’s Where Have All the Lovings Gone?: The Continuing Relevance of the Movement for a Multiracial Classification After Parents Involved in Community Schools v. Seattle School District No. 1. Deo assesses how racial classification, especially in the U.S. Census, has an enormous impact on the make up of public schools. She debates the efficacy of a “multiracial” census category versus the “check all that apply” approach endorsed by the Supreme Court in Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1. She critiques the Court’s approach, fearing it will lead to continuing “disregard of the contemporary effects of a race-conscious history” and the presumption that ignoring the issue of race will make it disappear.

Introduction

Almighty God created the races white, black, yellow, Malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.
 
This nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all its children.

June 2007 commemorated the fortieth anniversary of the Loving decision.  In two years, the 2010 Census will, for the second time, specifically enumerate the Loving’s children – and grandchildren – through the “two or more races”  category. With the authority to apportion representation, this constitutionally mandated counting is an historical measure of the population as well as a social gatekeeper, determining who counts and for how much. From its founding, the United States recognized the relevance of race. Through the U.S. Constitution, the United States organized the populace of the young nation; identifying some who would not be counted and dividing others, unnamed, who became only fractions. This carefully crafted document reflects an even older story, one of the racism deeply rooted in our nation’s history.

Historically, race has served many functions in the United States. The process by which individuals have been and continue to be “raced” is multi-faceted and complex. The census has played a significant role in this process, …

Read or purchase the article here.

Am I that Race? Punjabi Mexicans and Hybrid Subjectivity, or How To Do Theory So That It Doesn’t Do You

Hastings Women’s Law Journal
Volume 21, Number 2 (Summer 2010)
page 311-332

Falguni A. Sheth, Associate Professor of Philosophy and Political Theory
Hampshire College, Amherst, Massachusetts

I. INTRODUCTION
 
This paper explores the conceptual and racial status of “Punjabi Mexicans” at the turn of the twentieth century. I refer primarily to marriages between East Indian men and Mexican or Mexican-American women on the West Coast and in the Southwestern United States. The scant information available about these alliances has been uncovered by several historians and an anthropologist.  In that literature, this group appears to be a “given,” i.e., it is portrayed as a coherent identity that emerges from a simple set of circumstances.  Yet, it is anything but a given; its existence and its collective and individual consciousness is created out of a complex nexus of legal, political, social, and natural environments that spurred the migration of East Indian men and Mexican women from their homelands and to their adopted lands. I am interested in examining the collective consciousness of individuals who are located in the same moment, but who are living in distinct but overlapping contexts. The structural sources – laws, institutions, explicit and implicit prohibitions, cultural trends, and economic interests – converge to give this population its subjectivity. By subjectivity, I refer to the complex existence of human beings, whose self-understanding is found in the nexus of historical, political, and social circumstances; juridical and social institutions such as laws and government; as well as in their creativity and imagination in negotiating and resisting those circumstances in order to survive or flourish. In other words, as Michel Foucault says, “There are two …

Read or purchase the article here.

Before state’s high court: role of race in identifying a face

Seattle Times
2012-03-03

Ken Armstrong, Staff Reporter

In a case out of Seattle’s University District, the Washington State Supreme Court is being asked to determine whether jurors should be told that eyewitnesses who identify strangers across racial lines — for example, a white man identifying a black man — are more likely to be mistaken.

In State of Washington v. Bryan Edward Allen, two issues intersect that could hardly be of greater importance to the functioning of the criminal-justice system: the role of race, and the reliability of eyewitnesses.

The case, argued Thursday before the state Supreme Court, is also about sunglasses. We’ll get to that later.

On an August evening in 2009, in Seattle’s University District, Gerald Marcus Kovacs called 911 and said a stranger on the street had just threatened to kill him. Within minutes, police picked up Bryan Allen at a nearby bus stop. Officers took Kovacs to Allen and asked: Is this the guy? “Yeah, definitely, that is 100 percent him,” Kovacs told police.

Two months later, Allen was convicted of felony harassment. He received a sentence of 14 months.

Kovacs is white. Allen is black.

Allen’s appeal argues that when the case was tried in King County Superior Court, the judge should have instructed jurors that when someone from one race identifies a stranger from another race, the chances of a mistake go up.

An assemblage of professors and legal advocacy groups — including the Innocence Network, the Washington Association of Criminal Defense Lawyers, the American Civil Liberties Union of Washington Foundation, and the Fred T. Korematsu Center for Law and Equality — filed briefs in support, saying a wealth of research shows that people often struggle to distinguish faces outside their own racial group…

…Arguing the other side, Deborah Dwyer, a King County prosecutor, did not challenge the science on cross-racial identifications. Instead, she took issue with having a trial judge tackle the matter rather than having an expert witness testify.

The proposed instructions would not only violate the state’s constitution, Dwyer said, but invite all kinds of “practical difficulties.”

“Our society now is increasingly made up of mixed-race people. Well, what race are they? To take an example we could all relate to: President Obama. He is of mixed racial heritage. If he’s an eyewitness to a crime, is he presumed to be able to identify white people and black people? Or, perhaps, neither?”

Dwyer also asked: “Does race include ethnicity?” Some studies say Chinese people struggle to distinguish Japanese people, and vice versa. Would trial judges need to instruct jurors in cases like that? And if someone’s race isn’t entirely clear, how is a judge to figure that out?…

Read the entire article here.

AMST 294-03  Mixed Race America: Identity, Culture, and Politics

Macalester College
Saint Paul, Minnesota
Spring 2012

SooJin Pate

This course is an introduction to the animating debates, themes, and issues in Critical Mixed Race Studies. Utilizing critical race theory and postcolonial analysis, we will examine the identities and experiences of multiracial or mixed race people, as well as the ways in which they have played a fundamental role in constructing race and shaping race relations, politics, and culture in the U.S. Topics in this course address the following: conquest and slavery, miscegenation laws, debates about the U.S. Census categories, U.S. militarism, representations of “mixed” people in the media, cultural expressions of “mixed” Americans, transracial adoption, queering mixed race studies, and the Mixed Race/Multiracial Movement.

“Freedom By A Judgment”: The Legal History of an Afro-Indian Family

Law and History Review
Volume 30, Issue 1 (February 2012)
pages 173-203
DOI: 10.1017/S0738248011000642

Honor Sachs, Assistant Professor of History
Western Carolina University, Cullowhee, North Carolina

Forum: Ab Initio: Law in Early America

On May 2, 1771, John Hardaway of Dinwiddie County, Virginia posted a notice in the Virginia Gazette about a runaway slave. The notice was ordinary, blending in with the many advertisements for escaped slaves, servants, wives, and horses that filled the classified section of the Gazette in the eighteenth century. Like countless other advertisements posted in newspapers wherever slaves were held, Hardaway’s advertisement read: “Run away from the subscriber, a dark mulatto man slave named Bob Colemand, 25 years old, tall, slim, and well made, wears his own hair pretty long, his foretop combed very high, a blacksmith by trade, claimed his freedom under pretense of being of an Indian extraction.”

Read or purchase the article here.

We as Freemen: Plessy v. Ferguson

Pelican Publishing Company
2003
176 pages
5½ x 8½
20 photos – Notes – Index
ISBN: 1-58980-120-2
EAN: 978-1-58980-120-2 hc

Keith Weldon Medley

In June 1892, a thirty-year-old shoemaker named Homer Plessy bought a first-class railway ticket from his native New Orleans to Covington, north of Lake Pontchartrain. The two-hour trip had hardly begun when Plessy was arrested and removed from the train. Though Homer Plessy was born a free man of color and enjoyed relative equality while growing up in Reconstruction-era New Orleans, by 1890 he could no longer ride in the same carriage with white passengers. Plessy’s act of civil disobedience was designed to test the constitutionality of the Separate Car Act, one of the many Jim Crow laws that threatened the freedoms gained by blacks after the Civil War. This largely forgotten case mandated separate-but-equal treatment and established segregation as the law of the land. It would be fifty-eight years before this ruling was reversed by Brown v. Board of Education.

Keith Weldon Medley brings to life the players in this landmark trial, from the crusading black columnist Rodolphe Desdunes and the other members of the Comité des Citoyens to Albion W. Tourgee, the outspoken writer who represented Plessy, to John Ferguson, a reformist carpetbagger who nonetheless felt that he had to judge Plessy guilty.

Spoilt for choice?

New Law Journal: Leading on debate, litigation & dispute resolution
Vol 162, Issue 7498
2012-01-26

Adrian Jack, Barrister & Rechtsanwalt
Enterprise Chambers

Encouraging greater judicial diversity is no easy task, says Adrian Jack

The government is consulting on creating greater diversity in the judiciary. Where candidates for judicial appointment are of similar merit, membership of a “protected category” should be a trump card, allowing the candidate with that status to be appointed over the rival.

The idea is a simple one. If a white and a black candidate are of roughly similar merit, the black candidate should be appointed. Likewise, if there were a male and a female candidate, the female should go through.

Immediately though a problem arises. What if a black man is up against a white woman? Does the black man’s ethnicity trump the other candidate’s sex? Or vice versa?

One solution in such a case would be to disregard the protected characteristic of both candidates. However, this would not necessarily increase diversity. Take a woman applying for a tribunal post. In tribunals 38% of judges are women (against 51% in the population at large), whereas the percentage of black, Asian and minority ethnic judges is 10.5%—more than the nine per cent in the population (Report of the Advisory Panel on Judicial Diversity, para 18). A woman should surely be able to argue that the black male candidate’s ethnicity should be ignored (because the tribunal judiciary is already sufficiently ethnically diverse), so giving her the tie-break.

Indeed the problems do not stop there. The consultation implies that it will be readily apparent which candidates have protected characteristics. Yet this is not so. Who is “black”? Someone of mixed race must qualify. But what of someone who is one eighth of black heritage? Or one sixteenth?

In a case of race discrimination in the employment tribunal it is normally sufficient for claimants to self-describe their ethnicity. If a claimant has such a small proportion of black ancestry that they show no physical or cultural signs of that ethnicity, then the claimant is unlikely to show that he was treated less favourably on the ground of his race…

Read the entire opinion piece here.

Book Review: Go White, Young Man

Vanderbilt Law Review
Volume 65, En Banc 1 (2012-01-30)
10 pages

Alfred L. Brophy, Judge John J. Parker Distinguished Professor of Law
University of North Carolina School of Law

Daniel J. Sharfstein. The Invisible Line: Three American Families and the Secret Journey from Black to White. New York: Penguin Press, 2011. 415 pp. Hardcover ISBN: 9781594202827.

Sharfstein’s book follows three families whose members at some point crossed the color line separating black from white—or tried and failed to. These case studies tell us what it is to be American—how race is central to our identity, how we use race to take down opponents or to exclude—and how the line separating black and white is sometimes porous. However, is not the story of race and American legal history about the ways that race is defined by law and by norms? Race mattered because people policed the line separating blacks and whites. That many states classified people with a small percentage of African ancestry as white suggests that it was possible to move across the color line. Still, the cases where the color line was policed, rather than crossed, are significant.

Our nation’s struggle with race is now about one-third of a millennium long. So there is a lot for Daniel Sharfstein’s epic work of American history, The Invisible Line, to engage as it sweeps across centuries—from Virginia in the 1600s to Washington, DC, in the 1950s—and as it details generations of lives, from humble farmers in Appalachia to heirs of Gilded Age merchants. Where most other people who have looked at such issues focus on the chasm between white and black, Sharfstein looks at people on the line separating black and white. He is able in this way to get at key—and often overlooked—issues, such as how people have crossed the color line in America and what efforts to cross and police it tell us about our national struggle with race and with equality.

To detail the sine curve of attitudes towards race, Sharfstein offers three case studies of how racial categorization has functioned and how it kept (or attempted to keep) African-Americans in their place. The book follows three families whose members at some point crossed the line separating black from white—or tried and failed to. Sharfstein’s elegant prose illuminates how the color line functioned for people on both sides of it. For those who could do so, there were great incentives to claim to be white rather than black. In one era, race could define who might be a slave; in later eras, it was central to who could live in desirable locations, who could go to the most desirable schools, who could have access to the best government jobs. From statutes to social norms, African-Americans were told that they were inferior and had to maintain their place. Thus, those who might pass for white—those who had light enough skin color and perhaps the geographic mobility to mask their family history—often did so.

Some of the story of passing is well known. President Warren G. Harding is said to have remarked in response to an allegation that he had African ancestry, “How do I know? One of my ancestors may have jumped the fence.” Some of the best-known literature of the Jim Crow era was about crossing the color line, like Nella Larson’s Passing. And even antebellum literature often addressed the crossing of the line from black to white. Uncle Tom’s Cabin, for instance, has a vignette about a light-skinned former slave who passed for white. Yet, even though we know that families crossed the color line (or attempted to), one wonders if the most important lessons from Sharfstein’s book are the ways the line was successfully policed rather than the ways it was crossed…

…We learn a great deal about the policing of the color line in Sharfstein’s book. Attempts to prevent passing sometimes failed, as in the Regulator Movement and in the Spencers’ Appalachia. In both of those cases, opponents of families who had once been identified as African-American unsuccessfully claimed that they were still African-American. But Sharfstein illustrates numerous occasions when the line was successfully policed: in Washington, DC, after Reconstruction, when O.S.B. Wall helped lead a western exodus movement; in the early twentieth century, when disfranchisement of blacks led to loss of representation in Congress and loss of civil service jobs, such as Stephen Wall’s at the Government Printing Office; and when an heir to the Field fortune—who, as a member of the Gibson family, had some African ancestry—put on a display at the Field Museum about the races of mankind.

We learn that statutes helped police the color line. For instance, statutes defined the blood quantum that permitted one to be considered white. Yet even when statutes defined one as black, social norms often classified a person as white. Sharfstein makes a bold statement about the porous nature of the color line in regard to slavery: “The difference between black and white was less about ‘blood’ or biology or even genealogy than about how people were treated and whether they were allowed to participate fully in community life. Blacks were the people who were slaves, in fact or in all but name; the rest were white.” This argument shifts the basis for being considered black from blood quantum to status—though the two were often highly correlated…

Read the entire review here.

Batson Revisited in America’s “New Era” of Multiracial Persons

Seton Hall Law Review
Volume 33, Issue 1 (2003)
Article 3
pages 67-108

John Terrence A. Rosenthal

Since two bloods course within your veins, Both Jam’s and Japhet’s intermingling; One race forever doomed to serve, The other bearing freedom’s likeness.
—Poem from Jacob Steendam to his multiracial son

It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the government of the United States, which gives to bigotry no sanction—to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.
—Letter from President George Washington to the Hebrew Congregation of Newport, Rhode Island (Sept. 9, 1790)

I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.
—Letter from Thomas Jefferson to Thomas Paine (1789)

INTRODUCTION

From the time of this country’s founding, America has always been a multiracial society. In the coming decades, America’s racial and ethnic diversity will continue to increase. The 2000 Census evidences the present and coming racial complexity. Mandated by the Constitution, this decennial census, for the first time allowed individuals to chose more than one race in identifying their racial heritage. The preliminary results of the 2000 Census show that the number of individuals claiming multiracial status is not insignificant. As many as 2.4 percent of our nation’s citizens consider themselves multiracial; and in California, the nation’s most populace state, the percentage is 4.7.

Given our society’s historical penchant for discrimination against minority racial groups, persons of multiracial backgrounds do and will continue to face many of the same problems related to racial discrimination that other minority racial groups in our country have historically faced. These problems include, employment discrimination, housing discrimination, and discrimination in the administration of our criminal justice system. Due to the difficulty often associated with distinguishing which racial groups multiracial individuals belong to or derive from, the problems of discrimination will present these people with unique, and often unrecognized and unaddressed problems. This Article will address one of these potential problems, which is associated with the administration of the criminal justice system: discrimination based on race in the use of peremptory challenges during the selection of jurors.

This country has an extensive history of racial discrimination in the context of the jury selection process. Although both the courts and legislatures have attempted to deal with the problem of racial discrimination in the jury selection process, the solutions provided do not solve the problem for those persons of multiracial descent who may not be readily identified or perceived as racial minorities. In particular, it is a challenge for society to prevent the racially discriminatory use of peremptory challenges in the jury selection process, if only one side in the litigation recognizes a multiracial potential juror as being multiracial and discriminates based on that person’s racial makeup. What if a juror is dismissed from the jury pool by one side due to his or her racial heritage, but neither the other side nor the judge recognizes the discrimination because the racial makeup of the juror is not readily apparent to either?

The present jury selection process, mandated by Batson v. Kentucky to address racial discrimination in the use of peremptory challenges, depends upon the ability of the judge and the attorneys for both sides to perceive the racial makeup of the potential juror. Only then will one party be on notice of the possibility of racial discrimination and raise the proper challenge. If this party does not recognize the dismissed person as being of multiracial descent, then the constitutional violation goes undiscovered and unremedied. Therefore, Batson, as it is presently structured and enforced, may not, and most likely will not solve the problem of racial discrimination in the use of peremptory challenges to exclude multiracial persons from juries.

In Part I, the Article will review the legal and societal history of racial discrimination against multiracial individuals in our country. Part II will then examine the historical problem of racial discrimination in the context of the jury selection process and describe the present judicial remedy used to address this problem. In Part III, the Article will discuss the results of the 2000 Census, the implications of this data with regard to the racial make-up of juries, and how these data and anecdotal evidence suggest the existence of a unique problem of racial discrimination against multiracial individuals in the jury selection process. Finally, Part IV will suggest some potential remedies for this “vexing” problem…

Read the entire article here.