Of Mongrels and Men: The Shared Ideology of Anti-Miscegenation Law, Chinese Exclusion, and Contemporary American Neo-Nativism

Posted in Asian Diaspora, History, Law, Media Archive, Papers/Presentations, United Kingdom on 2013-04-06 16:19Z by Steven

Of Mongrels and Men: The Shared Ideology of Anti-Miscegenation Law, Chinese Exclusion, and Contemporary American Neo-Nativism

bepress Legal Series
Working Paper 458
2005-02-16

Geoffrey A. Neri, Associate
Miller Barondess, LLP

Table of Contents

  • I. INTRODUCTION
  • II. BIRTH OF THE “ABOMINATION”: THE DEVELOPMENT OF ANTI-MISCEGENATION LAW
    • A. Origins and Early History
    • B. Anti-Miscegenation Ideology
      • 1. Monogenism and Christian Fundamentalism
      • 2. Polygenism and Pseudoscience
      • 3. Social Darwinism
      • 4. A Beacon of Light in the Dark Age of Racist Ideology
  • III. THE “YELLOW PERIL”: ANTI-MISCEGENATION LAW AND CHINESE EXCLUSION
    • A. Chinese Migration to the United States in the 19th Century
      • 1. Pull Factors
      • 2. Push Factors
    • B. Anti-Chinese Immigration Legislation
    • C. The “Chinese Exclusion Case” and Plenary Power Doctrine
    • D. “Negroes or Mulattoes . . . and Mongolians”: The Anti-Miscegenation Expands to Include the Chinese
    • E. Effects of Anti-Miscegenation Law and Chinese Exclusion on Chinese Transnational Movement
  • IV.MORE WHIMPER THAN BANG: THE END OF CHINESE EXCLUSION AND THE ANTI MISCEGENATION STATUTE
    • A. The End of Chinese Exclusion
    • B. The Demise of the Anti-Miscegenation Statute
      • 1. Early Challenges
      • 2. Loving
  • V. THE CONTEMPORARY RELEVANCE OF ANTI-MISCEGENATION LAW AND THE PERIOD OF CHINESE EXCLUSION
    • A. The Good News . . . More Progressive Racial Norms in the Modern Era
    • B. The Bad News . . . Neo-Nativism Serves up “Old Poison in New Bottles”
  • VI.CONCLUSION

“We want no more mixture of races. . . . No strong nation was ever born of mongrel races of men.”
—U.S. Senator La Fayette Grover (addressing the “Chinese Problem”), June 30, 1872

I. INTRODUCTION

A complex interaction of push and pull factors created a substantial wave of Asian migration to the United States in the 19th century. In brief, acute political and economic instability and dislocation in China arising from European imperialism, internal conflict, and famine “pushed” Chinese laborers to the United States, while a demand for cheap, reliable labor brought on by burgeoning industrialization in the American West, the construction of the Transcontinental Railroad, and the 1849 California gold strike at Sutter’s Creek “pulled” them. Due to America’s historic policy of open borders, this migration was virtually unrestricted and the rapid influx of Chinese immigrants into the American West almost immediately provoked “widespread concerns about the relationship between race and national identity” in the United States. The Chinese were perceived as possessing characteristics that amounted to unbridgeable racial differences and “fears of hybridity” proliferated, prompting one California legislator to warn that “were the Chinese to amalgamate at all with our people, it would be a hybrid of the most despicable, a mongrel of the most detestable that has ever afflicted the earth.

Anti-miscegenation laws, state laws prohibiting sex and/or marriage between individuals of different “races” originally crafted to prevent the mixing of whites and blacks, were quickly extended to regulate the interaction between whites and the Chinese, the new “other” race. In a process dubbed “Negroization” by historian Dan Caldwell, the Chinese were charged with the same negative racial qualities—“[h]eathen, morally inferior, savage, and childlike . . . lustful, sensual”—that had previously been hoisted on blacks and the rhetoric of anti-black racism became the rhetoric of anti-Chinese racism. This process of reassignment occurred a number of times as subsequent groups of Asian immigrants came to the United States and anti-miscegenation laws were extended further to apply to them: Japanese, Koreans, Indians, Filipinos and eventually all Asian immigrants were subject to the prohibition against commingling with whites.

This Article will examine the anti-miscegenation statute as well as other exclusionary laws specifically applied to the Chinese diaspora in America throughout the 19th and 20th century, describing the impact these racially restrictive laws had on Chinese transnational migration during the period. It will present the anti-miscegenation statute as an emblem of the broader concern of American nativism—a concern with defining and policing American political and civic culture, with protecting American republicanism from the perceived threat posed by foreigners deemed “unassimilable.” This Article will then situate the anti-miscegenation statute within the larger framework of the xenophobic ideology animating exclusionary laws in general—an ideology in which amalgamation between white and nonwhite persons is assumed to threaten the purity of the white American body politic as much as the white American body.

Viewed in this manner, the anti-miscegenation statute, far from being a relic of America’s racist past, is especially relevant to contemporary arguments regarding immigration. For although the primary thesis of anti-miscegenation law—the assertion that nonwhites are incompatible with whites physically—has been disproven (or at least driven underground) by modern science, a dangerous corollary to that thesis—the notion that certain classes of immigrants, by virtue of their race and/or country of origin, are incompatible with American civic and political culture—endures. The modern nativist revival, this Article will conclude, invokes the specter of anti-miscegenation law and Chinese exclusion in charging that the most recent wave of migration to the United States, comprised mostly of Latinos and Asians, “cannot or will not assimilate” and threaten to degrade and undermine “national identity”…

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

Posted in History, Identity Development/Psychology, Law, Media Archive, Native Americans/First Nation, Papers/Presentations, Politics/Public Policy, United States on 2012-03-10 23:16Z by Steven

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

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The Pocahontas Exception: The Exemption of American Indian Ancestry from Racial Purity Law

Posted in Articles, History, Law, Media Archive, Native Americans/First Nation, United States on 2010-11-02 21:05Z by Steven

The Pocahontas Exception: The Exemption of American Indian Ancestry from Racial Purity Law

bepress Legal Series
Working Paper 1572
2006-08-18
47 pages

Kevin N. Maillard, Associate Professor of Law
Syracuse University

“The Pocahontas Exception” confronts the legal existence and cultural fascination with the eponymous “Indian Grandmother.” Laws existed in many states that prohibited marriage between whites and nonwhites to prevent the “quagmire of mongrelization.” Yet, this racial protectionism, as ingrained in law, blatantly exempted Indian blood from the threat to white racial purity. In Virginia, the Racial Integrity Act of 1924 made exceptions for whites of mixed descent who proudly claimed Native American ancestry from Pocahontas. This paper questions the juridical exceptions made for Native American ancestry in antimiscegenation statues, and analyzes the concomitant exemptions in contemporary social practice. With increasing numbers of Americans freely and lately claiming Native ancestry, this openness escapes the triumvirate of resistance, shame, and secrecy that regularly accompanies findings of partial African ancestry. I contend that antimiscegenation laws such as the Racial Integrity Act relegate Indians to existence only in a distant past, creating a temporal disjuncture to free Indians from a contemporary discourse of racial politics. I argue that such exemptions assess Indians as abstractions rather than practicalities, which facilitates the miscegenistic exceptionalism as demonstrated in Virginia’s antimiscegenation statute.

Table of Contents

  • I. INTRODUCTION
  • II. ADVOCATING INDIAN-WHITE INTERMIXTURE
    • A. Support from the Founding Fathers
    • B. Assimilation Schemes and the Dawes Allotment Act
  • III. EUGENICS AND THE RACIAL INTEGRITY ACT OF 1924
    • A. The Growth of the Eugenics Movement
    • B. Fear Ingrained in Law: The Racial Integrity Act
    • C. Accommodating the Elite: Redefining the Parameters of Whiteness
  • IV. THE LEGEND OF POCAHONTAS
  • V. THE VANISHING INDIAN
    • A. The Indian Grandmother Complex: A Different Kind of Birth for the Nation
    • B. To the Margins of Society: The Non-Threat of Indian Blood
    • VI. CONCLUSION

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