Mixed Race Studies

Dangerous Woman: Elizabeth Key’s Freedom Suit – Subjecthood and Racialized Identity in Seventeenth Century Colonial Virginia

Akron Law Review
University of Akron
Volume 41, Number 3 (2007-2008)
pages 799-837

Taunya Lovell Banks, Jacob A. France Professor of Equality Jurisprudence and Francis & Harriet Iglehart Research Professor of Law
University of Maryland School of Law

Elizabeth Key, an African-Anglo woman living in seventeenth century colonial Virginia sued for her freedom after being classified as a negro by the overseers of her late master’s estate. Her lawsuit is one of the earliest freedom suits in the English colonies filed by a person with some African ancestry. Elizabeth’s case also highlights those factors that distinguished indenture from life servitude – slavery in the mid seventeenth century. She succeeds in securing her freedom by crafting three interlinking legal arguments to demonstrate that she was a member of the colonial society in which she lived. Her evidence was her asserted ancestry – English; her religion, Christian; and the inability to be enslaved for life that stems from the first two statuses. These factors, I argue, determined who was the equivalent of white in seventeenth century Virginia.

I. Introduction

Elizabeth Key, an Afro-Anglo woman, was born around 1630 in the Virginia Colony. Twenty-five years later she sued for her freedom after the overseers of her late master’s estate classified her and her infant son as negroes (Africans or descendants of Africans) rather than as an indentured servant with a free-born child.  Unwilling to accept permanent servitude, Elizabeth sued for their freedom, and after protracted litigation she and her son were set free.

A few historians and legal scholars mention her case in passing as proof that by the mid seventeenth century people of African ancestry were held as slaves in Virginia.  Only feminist historian Kathleen Brown even mentions that Elizabeth’s lawsuit involved not only her freedom, but that of her son. To the rest of the historians she was simply a slave, her gender, son and mixed ancestry were irrelevant. None looked closely at the significance of her three interlinking legal arguments: (1) that she was a practicing Christian; (2) who was the daughter of a free Englishman; (3) who bound her out as an indentured servant for nine years which period had expired.

Arguably Elizabeth’s pleadings might be an early example of what Kenji Yoshino characterizes as “covering,” downplaying aspects of one’s identity. In crafting her legal argument around her father’s ancestry and subjecthood Elizabeth downplayed the African ancestry of her enslaved mother. Her argument also might be an example of “racial performance” where the extent one does things that English women and men did during the period becomes an important determinant of one’s legal status.  But as I explain in this article other cases decided during this period suggest otherwise…

Read the entire article here or here.

Mixed Race America and the Law: A Reader (Review)

Law and Politics Book Review
American Political Science Association
Volume 13,  Number 4 (April 2003)

Barbara L. Graham, Professor of Political Science,
University of Missouri, St. Louis

Mixed Race America and the Law: A Reader. By Kevin R. Johnson (Editor). (New York and London: New York University Press, 2003. 505 pages. Cloth ISBN: 0-8147-4256-4. Paper ISBN: 0-8147-4257-2)

In Mixed Race America and the Law: A Reader, Kevin R. Johnson has edited one of the most important and timely anthologies on the general topic of race mixture and the law. The anthology addresses a range of provocative issues concerning the mixed race experience and the law and its impact on mixed race peoples. For readers who are unfamiliar with the vast literature on the mixed race experience, I am confident that they will find this book’s interdisciplinary approach indispensable in its grappling with issues raised by multiracialism and the law. Johnson’s book, part of the Critical America Series published by New York University Press, takes critical race theory into another direction in its emphasis on mixed race scholarship.  As with many of the writings of critical race theorists, Johnson’s book has seriously challenged the conventional wisdom of the black-white paradigm. The writings persuasively demonstrate that America has always been a mixed race society, that the law has played a major role in shaping racial categories, classification schemes, intermarriage, immigration and trans-racial adoption issues to name a few. Race is addressed as a social construct and Johnson – as well as the other contributors – acknowledges how law has not kept up with the fluid racial boundaries in the American context. This book covers the diversity of the mixed race experience in America, including African American, Indian, Latina(o) and Asian populations. Johnson argues in the introduction that “racial mixture will undoubtedly shape the future study of race and civil rights in the United States. As minorities of many different types intermarry and rates of immigration of diverse peoples to this country remain high, more racial mixtures and mixed race peoples will emerge.”  The writings in the anthology take the reader on a journey in an effort to understand the complexities of racial mixture in the United States and abroad.

Johnson has carefully selected eighty-seven edited scholarly writings, primarily law review articles published in the 1990s and a few court cases.  The reader is divided into twelve parts in an attempt to examine the complexities of racial categories and what they mean for a mixed race society.  Part I addresses the history and slow demise of anti-miscegenation laws. The edited selections cover issues such as an historical overview of these laws, the history of racial identification and the regulation of interracial sex in colonial Virginia, and the relationship between lynchings and interracial relationships.  As expected, Johnson includes writings on an analysis of Loving v. Virginia (1967) and its impact.  Readers may be unfamiliar with an important precursor to Loving, Perez v. Sharp (1948), where the California Supreme Court held that the state anti-miscegenation law violated the Constitution.  Going beyond the white-black context, the other writings in Part I cover attempts to regulate intermarriage between Indians and whites and Asians and whites…

Read the entire review here.

White Enough to Be American? Race Mixing, Indigenous People, and the Boundaries of State and Nation (Review)

Law and Politics Book Review
American Political Science Association
Vol. 18 No.9 (2008-09-15)
pp. 788-791

Daniel Lipson, Professor of Political Science
State University of New York, New Paltz

White Enough to Be American? Race Mixing, Indigenous People, and the Boundaries of State and Nation. By Lauren L. Basson. (Chapel Hill, North Carolina: The University of North Carolina Press, 2008. 256 pages.)

At a moment in United States history when Barack Obama is inspiring millions in his presidential bid, the reality of mixed-race Americans is becoming increasingly salient in a nation long obsessed with dichotomous black and white racial categories. With the population of people of color in the United States accelerating at rates unmatched by any other country in the world, racial discourse in the US has gradually come to accommodate the full cast of official minorities, moving beyond the limited focus on blacks and whites. Yet the historical precedent in the United States has been to leave little space for mixed-raced Americans, instead preserving the racial order by forcing them into monoracial categories. As Lauren Basson explains in White Enough to Be American? Race Mixing, Indigenous People, and the Boundaries of State and Nation, the turn of the 20th century proved to be a highly dynamic period that left a major imprint on the distinctive American model of racial categorizations…

Read the entire review here.

Fathers of Conscience: Mixed-Race Inheritance in the Antebellum South (Book Review)

Civil War Book Review
Louisiana State University Special Collections

Kelly Kennington, 2009-2010 Law & Society Postdoctoral Fellow
Institute for Legal Studies
University of Wisconsin Law School

Jones, Bernie D. Fathers of Conscience: Mixed-Race Inheritance in the Antebellum South, University of Georgia Press. 216 pages. 2009.

Fathers of Conscience, Bernie D. Jones, Assistant Professor of Legal Studies at the University of Massachusetts-Amherst, examines southern state appellate court decisions concerning the wills of white slaveholders who left property to their mixed-race children. As numerous scholars have demonstrated, white slaveholders often engaged in sexual relationships with enslaved women. Southern communities typically accepted this behavior, as long as it remained hidden. But problems arose when white men chose to recognize the children of interracial unions and grant them freedom and property, particularly when these grants came at the expense of white relatives. In the latest contribution to the Studies in the Legal History of the South series, Jones argues that contests over wills forced southern judges to weigh the right of white slaveholders to dispose of their property as they wished against community concerns about the growing free black population and the threat it posed to the institution of slavery.

The first two chapters of Fathers of Conscience describe the types of cases that resulted throughout the antebellum South when potential white heirs challenged the validity of a slaveholder’s will, focusing especially on the language southern jurists used in their decisions. The first chapter argues that judges had “a limited set of tropes from which to choose” in deciding cases involving mixed-race inheritance, so they primarily described white testators in three ways: as “righteous fathers” who took responsibility for their mixed-race children; as “vulnerable old men” who were under the control of their enslaved black sexual partners; and as “degraded creatures” who garnered the disgust of southern jurists (42). In the second chapter, Jones describes judges whose language focused not on categorizing white men but on the consequences of these wills for southern society. Judges in these instances rebuffed white men’s efforts to free their enslaved children because jurists recognized the dangers of expanding the population of free people of color. In doing so, Jones argues that judges were “hiding behind the formal laws of slavery” when they cited statutes to deny the validity of wills (57)…

Read the entire review here.

The Color of Testamentary Freedom

Southern Methodist University Law Review
Volume 62
p. 1783
2009

Kevin Noble Maillard, Associate Professor of Law
Syracuse University

Wills that prioritize the interests of nontraditional families over collateral heirs test courts’ dedication to observing the posthumous wishes of testators. Collateral heirs who object to will provisions that redraw the contours of “family” are likely to profit from the incompatibility of testamentary freedom and social deviance. Thus, the interests of married, white adults may claim priority over nonwhite, unmarried others. Wills that acknowledge the existence of moral or social transgressions—namely, interracial sex and reproduction—incite will contests by collateral heirs who leverage their status as white and legitimate in order to defeat testamentary intent.

This Article turns to antebellum and postwar will contests between disinherited white heirs and mixed-race devisees to question the role of courts in defining “family” and the expectancy of collaterals to uphold this limitation. While other studies have separately examined the myth of testamentary freedom and argued for the legitimacy of diverse families, scholars have paid less attention to the color of inheritance. Drawing on Cheryl Harris’s groundbreaking work on property and racial expectation interests, this Article illustrates the centrality of whiteness in the validation of testamentary transfers. At the same time, it questions the legal resistance to nontraditional families, which substantially weakens the aspirational theory of donative freedom—the cornerstone of Trusts & Estates. Through the intersection of wills law and family law, this Article initiates a critical inquiry of the influence of race in testamentary transfers.

Read the entire article here.

Slaves in the Family: Testamentary Freedom and Interracial Deviance

2008
50 pages

Kevin Noble Maillard, Associate Professor of Law
Syracuse University

This Article addresses the deviance of interracial sexuality acknowledged in testamentary documents. The language of wills calls into question the authority of probate and family law by forcing issues of deviance into the public realm. Will dramas, settled in or out of court, publicly unearth insecurities about family. Many objections to the stated intent of the testator generate from social prejudices toward certain kinds of interpersonal relationships: nonmarital, homosexual, and/or interracial. When pitted against an issue of a moral or social transgression, testamentary intent often fails. In order for these attacks on testamentary validity to succeed, they must be situated within an existing juridical framework that supports and adheres to the hegemony of denial that refuses to legitimate the wishes of the testator. Disinherited white relatives of white testators regularly challenged wills disposing a majority of an estate to paramours and children of African descent. In the nineteenth century, testators who eschewed traditional devises to spouses, relatives, and institutions in favor of mistresses, slaves, or both often incited will contests of testamentary incapacity, undue influence, or fraud. This Article is a case study of In Re Remley, an antebellum will contest between disinherited white collateral heirs and the intended black and mulatto devisees. It retains timeless value in its demonstration of the incompatibility of testamentary freedom and social deviance. I conclude that subjective conceptions of kinship, in particular those unpopular relationships that defy social norms, prevent the idea of testamentary freedom from reaching diverse articulations of family.

Read the entire article here.

Africans in Colonial Mexico: Absolutism, Christianity, and Afro-Creole Consciousness, 1570-1640

Indiana University Press
2005-02-02
288 pages
1 bibliog., 1 index, 6.125 x 9.25
Paper ISBN-13: 978-0-253-21775-2; ISBN: 0-253-21775-X

Herman L. Bennett, Professor of Latin American History
City Univerisity of New York

The African community in colonial Mexico under Spanish and Catholic rule.

In this study of the largest population of free and slave Africans in the New World, Herman L. Bennett has uncovered much new information about the lives of slave and free blacks, the ways that their lives were regulated by the government and the Church, the impact upon them of the Inquisition, their legal status in marriage, and their rights and obligations as Christian subjects.

Table of Contents

Acknowledgments
Introduction: Africans, Absolutism, and Archives
1. Soiled Gods and the Formation of a Slave Society
2. “The Grand Remedy”: Africans and Christian Conjugality
3. Policing Christians: Persons of African Descent before the Inquisition and Ecclesiastical Courts
4. Christian matrimony and the Boundaries of African Self-Fashioning
5. Between Property and Person: Jurisdictional Conflicts over Marriage
6. Creoles and Christian Narratives
Postscript
Glossary
Notes
Selected Bibliography
Index

Multiracial Identity and Affirmative Action

Asian Pacific American Law Journal
University of California, Los Angeles
Volume 12, Fall 2006 – Spring 2007
32 pages

Nancy Leong, Assistant Professor of Law
Sturm College of Law, Denver University

The classification of multiracial individuals has long posed a challenge in a number of legal contexts, and the affirmative action debate highlights the difficulty of such classification. Should multiracial individuals be categorized according to how they view themselves, how society tends to view them, by some ostensibly objective formula based on their parents’ ancestry, or in some other fashion?

My article draws on sociological research to demonstrate that there are no easy answers to this question. The way multiracial individuals view themselves varies among individuals and, moreover, may vary at different times for the same individual. Society often lacks consensus on an individual’s racial status, and examining a person’s ancestry simply removes the question of categorization to prior generations. Although my article does not attempt to propose a better way to take race into account in the affirmative action context, I strive to raise the issues that must be confronted in developing a coherent system that furthers the goal of affirmative action.

Read the entire article here.

Multi-Hued America: The Case for the Civil Rights Movement’s Embrace of Multiethnic Identity

The Modern American
American University
Volume 4, Issue 1 (Spring 2008)
8 pages

Kamaria A. Kruckenberg
Harvard Law School

My little girl in her multi-hued skin
When asked what she is, replies with a grin
I am a sweet cuddlebums,
A honey and a snugglebums:
Far truer labels than those which are in.

The above poem resonates deeply with me, and it should: my mother wrote it about me. She recited its lines to me during my childhood more times than I can count. It was a reminder that I, daughter of a woman whom the world saw as white and a man whom the world called black, could not be summed up into any neat ethnic category. The poem told me that, though my skin reflected the tones of a variety of cultures, I was more than the sum of my multiple ethnic identities. Over my lifetime, I have recalled this message each time someone asked, “What are you?” and every time I checked “other” in response to the familiar form demand that I mark one box to describe my race.

The classification of multiethnic individuals like myself recently has been the focus of many heated debates. The Office of Management and Budget (“OMB”) sets the racial categories used on numerous forms, including the census. In 1997, the OMB revised Statistical Policy Directive 15, its rule for racial data classification, requiring all federal agencies to allow individuals to mark multiple races on all federal forms.  Because the implications of the classification of multiethnic individuals in federal racial data collection are potentially far reaching, this change has been surrounded by controversy. The census tracks the numbers and races of Americans for legislative and administrative purposes.  This information is particularly important for this country’s enforcement of civil rights laws.

Numerous authors argue that the recognition of multiethnic identity will hamper traditional civil rights efforts. They claim that policies that maintain civil rights must win out over the individual caprice of those who advocate for multiethnic recognition.  On the other hand, many argue that the recognition of the personal meaning of multiethnic identity is important and does not hamper the traditional goals of civil rights groups.

In this article I explore the context of this debate by examining both the history of race and the census. I then examine both sides of the multiethnic characterization argument. Finally, I end the article with a proffered solution to the controversy…

Read the entire article here.

Reconstructing the Household: Families, Sex, and the Law in the Nineteenth-Century South

University of North Carolina Press
March 1998
382 pages
6.125 x 9.25
8 tables, notes, bibl., index
Paper ISBN  978-0-8078-4712-1

Peter W. Bardaglio, Associate Professor of History
Goucher College, Baltimore, Maryland

Winner of the 1996 James A. Rawley Prize, Organization of American Historians

In Reconstructing the Household, Peter Bardaglio examines the connections between race, gender, sexuality, and the law in the nineteenth-century South. He focuses on miscegenation, rape, incest, child custody, and adoption laws to show how southerners struggled with the conflicts and stresses that surfaced within their own households and in the larger society during the Civil War era. Based on literary as well as legal sources, Bardaglio’s analysis reveals how legal contests involving African Americans, women, children, and the poor led to a rethinking of families, sexuality, and the social order. Before the Civil War, a distinctive variation of republicanism, based primarily on hierarchy and dependence, characterized southern domestic relations. This organic ideal of the household and its power structure differed significantly from domestic law in the North, which tended to emphasize individual rights and contractual obligations. The defeat of the Confederacy, emancipation, and economic change transformed family law and the governance of sexuality in the South and allowed an unprecedented intrusion of the state into private life. But Bardaglio argues that despite these profound social changes, a preoccupation with traditional notions of gender and race continued to shape southern legal attitudes.

Read the preface here.