Mixed Race Studies

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.

The Founder Effect and Deleterious Genes

American Journal of Physical Anthropology
Volume 30, Issue 1 (January 1969)
pages 55-60
DOI: 10.1002/ajpa.1330300107

Frank B. Livingstone (1928-2005), Professor Emeritus of Biological Anthropology
University of Michigan

During the rapid growth of a population from a few founders, a single deleterious gene in a founder can attain an appreciable frequency in later generations. A computer simulation, which has the population double itself in early generations, indicates a lethal could attain a frequency of 0.1. Since deleterious recessive genes are eliminated from large populations at a very slow rate, variations in their frequencies in present major human populations may be due to the founder effect during earlier rapid expansion.

Many distinctive human populations are characterized by the presence of one or more lethal or severely deleterious genes in frequencies which would be defined as polymorphic according to Ford’s (’40) famous definition. The particular genetic disorder, however, varies. The Old Order Amish of Lancaster County, Pennsylvania have a gene frequency of 0.07 for the recessive Ellis-van Creveld syndrome, while the Amish as a whole have a frequency of about 0.05 of the recessive cartilage-hair hypoplasia syndrome ( McKusick et al., ’64). Many of the tri-racial isolates of Eastern United States also have a high frequency of a deleterious gene (Witkop et al., ’66). Although such populations are frequently defined by religious or ethnic criteria, there are others not so defined. Several island populations in the Åland archipelago have a gene frequency of greater than 0.1 for von Willebrand’s disease (Eriksson, ’61), and the Boer population of South Africa and some populations of Northern Sweden have frequencies of porphyria much greater than those of other populations (Dean, ’63; Waldenstrom and Haeger-Aronsen, ’67). However, these conditions are dominant and do not have the very severe effects of other hereditary disorders found in high frequencies. On the other hand the population of the Chicoutimi District of Quebec has recently been found to have a gene frequency of about 0.02 for tyrosinemia, which is a lethal recessive (Laberge and Dallaire, ’67).

In most of these cases the population in question has undergone a rapid increase in recent years, and the question arises as to whether this rapid expansion and the original small size of the isolate could account for the high frequency of the deleterious gene. Such an explanation by the founder effect seems obviously to apply to most of the cases cited above, but the founder effect may well be a more general explanation of human gene frequency differences. It is now becoming apparent that the major populations of mankind vary significantly in their frequencies of deleterious genes and that many large populations such as Eastern European Jews have high frequencies of deleterious genes which are found in low frequencies in other populations McKusick, ’66). There have been many attempts to determine how such genes could be polymorphic, for example, Anderson et al. (’67) and Knudson et al. (’67) have discussed cystic fibrosis and Myrianthopoulos and Aronson (’66), Tay-Sachs disease. The purpose of this paper is to attempt to determine the extent to which the founder effect can cause high frequencies of deleterious genes with various models of population expansion.

The occurrence which initiated this research is the gene for sickle cell hemoglobin in the Brandywine isolate of Southeast Maryland. At present the sickle cell gene frequency in this isolate is about 0.1 (Rucknagel, ’64). The high frequencies of this gene in many parts of Africa, India, and the Middle East are now well-accepted as being due to a relative resistance of the sickle cell heterozygote to falciparum malaria. The high frequency in the Brandywine isolate may have a similar explanation, but the surrounding Negro population does not have such a high frequency. And although the endemicity of falciparum malaria in Southeast Maryland in the last century is not known in any detail, it would not appear to have been great enough to explain the high sickle cell frequency in the Brandywine isolate. The isolate also has many other deleterious genes in high frequency (Witkop et al., ’66).

The Brandywine isolate seems to have had its beginning in the early Eighteenth Century when laws were passed to prohibit co-habitation and marriage among races, which prior to then were presumably frequent or at least known. Up to 1720 there were several prosecutions under these laws of individuals with surnames currently present in the isolate (Harte, ’63). Harte (’63) has maintained that the Brandywine isolate is derived from these illegal unions, and Witkop et al. (‘66) show that the most common surname came from such a union. In 1790 the first United States Census recorded 190 persons with the group’s surnames as “other free people,” and since then over 90% of the recorded marriages have been endogamous or between individuals with surnames within the group (Harte, ’59). According to Harte (’59) there are six “core” surnames which have been associated with the group since its founding and comprise 66% of the population and another ten surnames which entered the group after the Civil War, but Witkop et al. (‘66) list seven core surnames and eight marginal ones. The total population of the isolate is now estimated to be 5,128 (Witkop et al., ’66), and the statistics do indicate rapid, if erratic, growth (Gilbert, ’45; Harte, ’63)…

Read the entire article here

Tough lessons in CTC’s play about community destruction

MPR News
Minnesota Public Radio
2012-03-15

Nikki Tundel, Reporter

St. Paul, Minn. — A century-old story of discrimination is the basis for a world premiere production opening Friday in Minneapolis.

“Lizzie Bright and the Buckminster Boy” is the Children’s Theatre Company’s adaption of the real-life events of a forbidden friendship during the social segregation of 1912.

It’s a dark tale. But it’s one the theater company believes should be shared – especially with school children.

Actress Traci Allen was a bit wary when she first heard of Minnesota’s Children’s Theatre Company.

“I’m thinking of puppets and, ‘Hello, boys and girls,'” Allen pantomimed before a recent rehearsal.

Her preconceived notion didn’t last long. Today, she is the lead in the CTC’s “Lizzie Bright and the Buckminster Boy.” The children’s play wrestles with various adult themes, from economic turmoil to mortality.

Twenty-six-year-old Allen plays 13-year-old Lizzie. When afternoon rehearsal begins, she’s mourning the death of her grandfather in a song.

The story chronicles the forbidden friendship between Lizzie, who is black, and Turner Buckminster, who is white. It highlights the challenges they face in socially segregated 1912.

“Is there transition music there?” asks CTC artist director Peter Brosius, who directs the play.

The production is based on a Newbery Award-winning book [by Gary D. Schmidt], which in turn is based on the real-life history of Phippsburg, Maine. When the small coastal town was hit by an economic downtown, community leaders looked to the nearby island of Malaga to solve their financial woes.

“The idea,” said Brosius, “Was that the population that was on Malaga, which was a black and mixed-race population, should be removed from that island and that both the coastline and Malaga be turned into a resort. What happened, in fact, was the island was evacuated, people’s homes were moved.”…

Read the entire article and listen to the audio here.

Mix-d: Museum

Mix-d:™
2012-02-27

Chamion Caballero, Senior Research Fellow
London South Bank University

Peter Aspinall, Reader in Population Health at the Centre for Health Services Studies
University of Kent, UK

The overall aim of the project is to explore the potential of translating knowledge through technology. Working together with Mix-d, the team will draw on findings from the British Academy project to develop the ‘Mix-d Museum’, an online repository of material and interactive resources.

Hello and a big welcome to our blog! We are delighted to be working with Mix-d: to share the findings of our research on mixed race people, couples and families in early 20th century Britain through the creation of the Mix-d: Timeline. The Timeline will provide highlight many key events in the history of racial mixing and mixedness in twentieth century Britain, as well provide an insight into the everyday lives and experiences of mixed race people, couples and families during this time.

For this first blog entry, we thought we’d say a bit about why we started the research project that the Timeline will draw on and what we found along the way.

As researchers interested in mixed race people, couples and families, we were aware that the little history that had been told about this group—particularly around the interwar period—had assumed that theirs was an inherently negative or problematic experience. We were also aware that such perceptions continued to influence how mixed people, couples and families were seen in Britain today…

…We had hoped to find some records and personal accounts relating to these families and people, but what we found far exceeded our expectations. The project sourced a fantastic range of archival material, including official documents, autobiographical recordings and photo and film material, which has helped us to understand more about the experiences of these families and the effect that official attitudes to racial mixing and mixedness had on their lives…

Read the entire blog post here.

The suggestion of a fruitless future for the black American is reinforced in the faces of the two young figures. Homer endows the women with traditional Caucasian features by painting them with light skin and slender facial bone structure. By representing the figures with a combination of both prototypical black and white physical characteristics, Homer portrays them as products of sexual mingling between the races. Although interracial cohabitation had been prevalent since the Colonial era, mulattos born in the period from the mid-eighteenth to the mid-nineteenth centuries were often the result of sexual relations between white males of the planter class and their domestic slaves. Common almost to the point on institutionalization, wealthy Southern planters kept regular concubines and bred entire families of mixed-race children, the result being an unprecedented increase in mulatto slavery during the years 1850-60.  Based on the appearance of the two figures in Homer’s 1876 painting, their logical birth dates would fall near the height of interracial procreation, raising the distinct possibility that these women were fathered by the plantation owner.

Susanna W. Gold, “A measured freedom: national unity and racial containment in Winslow Homer’s The Cotton Pickers, 1876,” The Mississippi Quarterly, (Spring 2002).

Multiraciality Is As Old As This Country: Gender, Sexuality & Race Mixing with Professor Renee Romano

Blogtalk Radio
2012-02-10

Michelle McCrary, Host
Is That Your Child?

Renee Romano, Associate Professor of History
Oberlin College

Last Friday ITYC had an enlightening conversation with Professor Renee Romano from Oberlin College about the ways in which our country’s historical memory about race has served to advance the political interests of institutional whiteness. She noted the erasure of our country’s long history of “race mixing” in all of its complexity as one of the casualties of a national racial memory that seeks to minimize and obfuscate the contributions of people of color to the formation of the United States.

We also talked about how black/white interracial couples tackle issues of white privilege as well as her own personal story about how she negotiates issues of race in her own marriage.

Download the episode here (01:08:19).

Catholic records of slave baptisms in colonial New Orleans go online

New Orleans Times-Picayune
2011-02-01

Bruce Nolan, Beat Reporter

On Sunday, the 6th of May, 1798, an enslaved New Orleans woman named only Manon, owned by Mr. LeBlanc, presented her 2-year-old child, Antoine Joseph, at St. Louis Cathedral on the Plaza de Armas to be baptized at the hands of Father Luis Quintanilla, a Capuchin friar there.

Manon was probably accompanied by her owner, as was the custom of the day, according to Emilie Leumas, an expert on the era and the keeper of the Archdiocese of New Orleans’ sacramental records.

In racially complex, laissez-faire New Orleans, where categories of race were faithfully noted then sometimes dismissed, Quintanilla noted the pertinent details. Manon was a mulatto, or mixed-race woman, and the baby’s father was officially unrecognized but apparently white, as the baby is described with the Spanish term “quarteroon,” which means three-fourths white.

The record of that event has always been preserved in the rich archives of the Archdiocese of New Orleans. But it has never been easily accessible.

But Tuesday, the 1798 baptism of Antoine Joseph, with thousands of similar baptismal records from colonial New Orleans, were posted on the Internet as a new tool for genealogists everywhere.

“Now people can sit in their slippers at 11 o’clock at night and read away,” said Leumas, the archdiocese’s archivist…

..In Antoine Joseph’s case, the godparents were there: Marie Joseph and Antonio, neither with a family name. Still attentive to the complex categories of race and color, Quintanilla noted that the baby’s godfather was “metis”—another mixed-race classification, perhaps suggesting American Indian blood, according to Leumas.

By the end of 2012, the archdiocese hopes to go both forward and backward in time, posting all of its sacramental records—baptisms, marriages, funerals and other life cycle events—from the founding of the city in 1718 to the date of Louisiana’s admittance to the union in 1812, Leumas said…

Read the entire article here.

Obama and the Biracial Factor: The Battle for a New American Majority

Policy Press
February 2012
256 pages
234 x 156 mm
Hardback ISBN-10: 1447301005; ISBN-13: 978-1447301004

Andrew J. Jolivétte, Associate Professor of American Indian Studies (Also see biographies at Speak Out! and Native Wiki.)
Center for Health Disparities Research and Training
San Fransisco State University

Since the election in 2008 of Barack Obama to the Presidency of the United States there have been a plethora of books, films, and articles about the role of race in the election of the first person of color to the White House. None of these works though delves into the intricacies of Mr. Obama’s biracial background and what it means, not only in terms of how the President was elected and is now governing, but what multiraciality may mean in the context of a changing U.S. demographic. Obama and the Biracial Factor is the first book to explore the significance of mixed-race identity as a key factor in the election of President Obama and examines the sociological and political relationship between race, power, and public policy in the United States with an emphasis on public discourse and ethnic representation in his election. Jolivette and his co-authors bring biracial identity and multiraciality to forefront of our understanding of racial projects since his election. Additionally, the authors assert the salience of mixed-race identity in U.S. policy and the on-going impact of the media and popular culture on the development, implementation, and interpretation of government policy and ethnic relations in the U.S. and globally. This timely work offers foundational analysis and theorization of key new concepts such as mixed-race hegemony and critical mixed race pedagogy and a nuanced exploration of the on-going significance of race in the contemporary political context of the United States with international examples of the impact on U.S. foreign relations and a shifting American electorate. Demographic issues are explained as they relate to gender, race, class, and religion. These new and innovative essays provide a template for re-thinking race in a ‘postcolonial’, decolonial, and ever increasing global context. In articulating new frameworks for thinking about race and multiraciality this work challenges readers to contemplate whether we should strive for a ‘post-racist’ rather than a ‘post-racial’ society. Obama and the Biracial Factor speaks to a wide array of academic disciplines ranging from political science and public policy to sociology and ethnic studies. Scholars, researchers, undergraduate and graduate students as well as community organizers and general audiences interested in issues of equity, social justice, cross-cultural coalitions and political reform will gain new insights into critical mixed race theory and social class in multiracial contexts and beyond.

Contents

• Part I
  • Obama and the biracial factor: An introduction – Andrew Jolivette
  • Race, multiraciality, and the election of Barack Obama: Toward a more perfect union? – G. Reginald Daniel
  • “A Patchwork Heritage” Multiracial citation in Barack Obama’s Dreams from My Father – Justin Ponder
  • Racial revisionism, caste revisited: Whiteness, blackness and Barack Obama – Darryl G. Barthé, Jr.
• Part II: Beyond black and white identity politics
  • Obama mamas and mixed race: Hoping for “A More Perfect Union” – Wei Ming Dariotis and Grace Yoo
  • Is ‘no one as Irish as Barack O’Bama’? Racial authenticity, cognitive flexibility and the racial Rorschach test – Rebecca Chiyoko King O’Riain
  • Mixed race kin-aesthetics in the Age of Obama – Wei Ming Dariotis
  • Mutt like me: Barack Obama and the mixed race experience in historical perspective – Zebulon Miletsky
• Part III: The battle for a new American majority
  • A different kind of blackness: The question of Obama’s blackness and intraracial variation among African Americans – Robert Keith Collins
  • Obama and race in the recessionary period of the colorblind era – Kathleen Odel Korgen and David L. Brunsma
  • Barack Obama and the rise to power: Emmett Till revisited – Andrew Jolivette

Métis identity matters

Winnipeg Free Press
2011-02-09

Editorial

The question of Métis identity has befuddled Canadians, governments and the courts ever since Louis Riel occupied Upper Fort Garry in 1869 and established a provisional government. Just who were these troublemakers, who had their own language, customs and practices, and who now claimed territorial rights?

Well, they weren’t First Nations and they weren’t Europeans, and they weren’t merely “half-breeds,” but a relatively new nation born in the fur-trading culture of 18th-century North America.

That was probably good enough, as definitions go, until 1982 when the Canadian Constitution guaranteed legal rights to aboriginal peoples, including the Métis, but left it to the courts to sort out those rights. Obviously, if they had rights, whatever those rights were, it mattered who and what was a Métis…

Read the entire editorial 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.