Loving Indian style: Maintaining racial caste and tribal sovereignty through sexual assimilation

Wisconsin Law Review

Volumn 2007, Issue 2, 2007, Pages 409-462

  Pratt, Carla D ^a,b,c  

^a PENNSYLVANIA STATE UNIVERSITY   (United States)

^b HOWARD UNIVERSITY   (United States)

^c TEXAS A AND M UNIVERSITY COMMERCE   (United States)

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[No Author keywords available]

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EID: 38149085391     PISSN: 0043650X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (339)

1. This Article uses this term because this is the term that the law used to regulate interracial relationships. This Article declines to launder the term in an effort to make it less offensive because we should all remember just how offensive such laws were to human dignity. The usage of the term should not be interpreted as an endorsement of the biological theories of race that supported laws banning interracial marriage or interracial sexual relationships. This Article declines to use the term "antimiscegenation" because the prefix is cumbersome and unnecessary given that these laws proscribed miscegenation. This Article does, however, use the term "antiblack miscegenation" to make it clear that the law permitted interracial relationships between non-black persons of differing races. For a discussion of the origin of the term "miscegenation" as a political hoax, see Sidney Kaplan, The Miscegenation Issue in the Election of 1864, 34 J. NEGRO HIST. 274 (1949).
2. Loving v. Virginia, 388 U.S. 1 (1967).
3. In accordance with the preference of the Wisconsin Law Review, the terms "black" and "white" are lowercased throughout the Article.
4. See Mark Strasser, Loving in the New Millennium: On Equal Protection and the Right to Marry, 7 U. CHI. L. SCH. ROUNDTABLE 61 (2000);
5. Robert A. Destro, Introduction to Symposium, Law and the Politics of Marriage: Loving v. Virginia After 30 Years, 47 CATH. U. L. REV. 1207, 1222-26 (1998).
6. This Article uses the term "white" to refer to people of European ancestry whose physical appearance would cause others they encounter to racially classify them as Caucasian or "white." This Article declines to capitalize the term "white" because it does not describe a cultural subgroup, but is rather a classification encompassing many different and varied cultural groups.
7. Garrett Epps, What's Loving Got to Do with It?, 81 IOWA L. REV. 1489, 1497 (1996).
8. See id.; Destro, supra note 4, at 1222; Nancy K. Ota, Flying Buttresses, 49 DEPAUL L. REV. 693, 724 (2000).
9. Joan Schaffner, The Federal Marriage Amendment: To Protect the Sanctity of Marriage or Destroy Constitutional Democracy?, 54 AM. U. L. REV. 1487, 1508 (2005).
10. Loving v. Virginia, 388 U.S. 1, 5 n.4 (1967).
11. This Article uses the terms "Indian" and "Native American" interchangeably, because these are the terms used in law and culture to refer to the collective indigenous people of North America, and particularly the autochthonous people occupying the geographic region of what is now the United States. Although the term "Indian" is the label that Christopher Columbus applied to the indigenous people of the Americas based on his mistaken belief that he had arrived in the Indies, this Article uses the term because it is still widely used to describe indigenous peoples of North America. Lorie M. Graham, The Past Never Vanishes: A Contextual Critique of the Existing Indian Family Doctrine, 23 AM. INDIAN L. REV. 1, 1 n.2 (1998).
12. See Robert A. Pratt, Crossing the Color Line: A Historical Assessment and Personal Narrative of Loving v. Virginia, 41 How. L.J. 229, 233 (1998).
13. See id. at 235. Central Point, Virginia, where Mildred grew up, was notorious for being an interracial community. See PHYL NEWBECK, VIRGINIA HASN'T ALWAYS BEEN FOR LOVERS: INTERRACIAL MARRIAGE BANS AND THE CASE OF RICHARD AND MILDRED LOVING 20-22 (2004). It was said that the "predominant blood in [the people of Central Point] is that of Indian and white races." Id. at 22. Mildred wrote a letter on June 20, 1963 wherein she referred to herself as "part negro, & part indian." Letter from Mildred Loving (June 20, 1963), in NEWBECK, supra.
14. This Article uses the terms "black" and "African American" interchangeably to refer to people who are citizens of the United States and claim African ancestry, descended from people who were forced to serve as slaves. Indeed, not all black people are African American and not all African Americans consent to the label of "black." This Article also recognizes that not all African Americans are descendants of slaves and that people who appear to be black may not identify racially as "black," nor necessarily identify as part of the black community. Nonetheless, the term is meant to capture a discrete population residing in the United States with a shared history of racial oppression. See Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331, 1332 n.2 (1988). This Article occasionally uses the term "Negro" when recounting the perspectives of nonblacks during the time period when law and society used the term "Negro" to refer to blacks.
15. See Wyatt F. Jeltz, The Relations of Negroes and Choctaw and Chickasaw Indians, 33 J. NEGRO HIST. 24, 30 (1948).
16. Fortunately, this is beginning to change. For a thoughtful analysis of Indian-white miscegenation law, as well as some tribal miscegenation laws regulating Indian relations with blacks, see Karen M. Woods, "A Wicked and Mischievous Connection": Origins and Development of Indian-White Miscegenation Law, 23 LEGAL STUD. FORUM 37 (1999).
17. For a historical analysis of Cherokee miscegenation law, see Fay Yarbrough, Legislating Women's Sexuality: Cherokee Marriage Laws in the Nineteenth Century, 38 J. SOC. HIST. 385 (2004). For a thorough analysis of tribal miscegenation laws and Indian-black race mixing, see Kevin M. Maillard, The T'aint of Taint: Memory and the Denial of Mixed Race in the U.S. (2004) (dissertation on file with the Univ. of Michigan).
18. This Article uses the terms "tribe" and "nation" interchangeably to describe the various groups of Native Americans who share a history, language, and culture. The terms are used interchangeably because the law uses both terms. See, Osage Tribe of Indians of Okla. v. U.S., 72 Fed. Cl. 629 (2006) (referring to the plaintiff as both a "nation" and a "tribe"). Federal Indian law still uses the word "tribe." See 25 C.F.R. § 83.1 (2006). "Tribe" has also been defined in more racialized terms as "a community of people bound together by blood ties, who are socially, politically, and religiously organized, who live together, and who speak a common language." FERGUS M. BORDEWICH, KILLING THE WHITE MAN'S INDIAN: REINVENTING NATIVE AMERICANS AT THE END OF THE TWENTIETH CENTURY 69 (1996). The word "tribe" should never be interpreted as subordinating Native American governments or communities to other nation-states.
19. FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 232 (Rennard Strickland ed., 1982);
20. Vanessa J. Jiménez & Soo C. Song, Concurrent Tribal and State Jurisdiction Under Public Law 280, 47 AM. U. L. REV. 1627, 1707 & n.72 (1998).
21. For an interesting article discussing the assimilation of the American Indian, see J. Milton Yinger & George Eaton Simpson, The Integration of Americans of Indian Descent, 436 ANNALS AM. ACAD. POL. & SOC. SCI. 137 (1978). The authors describe assimilation as including four intergroup processes: amalgamation (biological assimilation), identification (psychological assimilation), acculturation (cultural assimilation), and integration (structural assimilation). Id. at 138. They argue that most Native Americans reject forced assimilation and instead seek pluralism, which they define as equality with members of the dominant society with the retention of a partially distinct culture. Id. at 140.
22. This is not to suggest that the traditional binary paradigm is useless. Although LatCrit scholars persuasively argue that overemphasis on this paradigm can marginalize the experiences of nonblack people of color, Professor Taunya Banks is also correct to point out that ignoring it in discussions of race may mask antiblack bias held by people of color such as Latinos. See Taunya Lovell Banks, Mestizaje and the Mexican Mestizo Self: No Hay Sangre Negra, So There Is No Blackness, 15 S. CAL. INTERDISC. L.J. 199, 204 (2006);
23. Tanya Katerí Hernández, Afro-Mexicans and the Chicano Movement: The Unknown Story, 92 CAL. L. REV. 1537, 1538 (2004)
24. (reviewing IAN F. HANEY LÓPEZ, RACISM ON TRIAL: THE CHICANO FIGHT FOR JUSTICE (2003)) (demonstrating that Chicano antiblack sentiment originated in Mexico and that during the Chicano movement in the United States, Chicanos embraced a nationalistic identity of mestizaje to unify all Chicanos, but that this strategy required Afro-Mexicans to repress their blackness);
25. Tanya Katerí Hernández, Multiracial Matrix: The Role of Race Ideology in the Enforcement of Antidiscrimination Laws, a United States-Latin America Comparison, 87 CORNELL L. REV. 1093 (2002) (examining racial hierarchy in Brazil, Cuba, and Puerto Rico and comparing their "racial democracy" model of racial ideology to American racism and the push for continued race-consciousness). Professor Kevin Johnson has acknowledged that the assimilative process for immigrants in the United States requires them to adopt the tastes of the dominant society, including antiblack sentiment.
26. See Kevin R. Johnson, "Melting Pot" or "Ring of Fire"?: Assimilation and the Mexican-American Experience, 85 CAL. L. REV. 1259, 1274 (1997) (describing his Mexican-American grandmother's admonition to never bring home an African-American girlfriend).
27. This Article rejects any notion that these tribes are or ever were "uncivilized," and will subsequently refer to them as "the tribes" or "the Five Tribes." This Article uses the phrase "Five Civilized Tribes" here because this is the term that historians have used to refer collectively to the Cherokee, Chickasaw, Choctaw, Creek, and Seminole tribes. See, e.g., Carla D. Pratt, Tribes and Tribulations: Beyond Sovereign Immunity and Toward Reparation and Reconciliation for the Estelusti, 11 WASH. & LEE RACE & ETHNIC ANC. L.J. 61, 75 (2005). Whites gave the tribes this name because these five tribes adopted the European-American way of life which included farming, Christianity, slaveholding status, and intermarriage with whites.
28. See William G. McLoughlin, Red Indians, Black Slavery, and White Racism: America's Slaveholding Indians, 34 AM. Q. 376 (1974). Professor William McLoughlin quotes Cherokee Indian Agent George M. Butler, who stated in 1859: "I believe if every family of the wild roving tribes were to own a negro man and woman who would teach them to cultivate the soil . . . it would tend more to civilize them than any other plan that could be adopted." Id. at 375 n.11. Intermarriage between whites and Indians resulted in "mixed blood" children who were regarded as more "civilized" because they had European "blood."
29. THEDA PURDUE, MIXED BLOOD INDIANS: RACIAL CONSTRUCTION IN THE EARLY SOUTH at x (2005).
30. This Article does not assert that the tribes discussed herein were the only Indian nations to adopt miscegenation laws, but rather limits its examination to those tribes that have a shared history in law, which serves as the genesis for their contemporary legal disputes regarding Indian identity. The Seminoles were subject to Creek law until the two tribes signed a treaty in 1856, establishing the Seminole Nation as a separate and distinct Indian nation. DANIEL F. LITTLEFIELD, JR., AFRICANS AND SEMINOLES: FROM REMOVAL TO EMANCIPATION 174-75 (1977). Unlike the other tribes, the Seminoles had an early preremoval tradition of permitting interracial marriage with blacks. See, e.g., id. at 42, 53, 63 n.42;
31. see also Joyce A. McCray Pearson, Red and Black - A Divided Seminole Nation: Davis v. U.S., 14 KAN. J.L. & PUB. POL'Y 607, 629 (2005);
32. Carla D. Pratt, Tribal Kulturkampf: The Role of Race Ideology in Constructing Native American Identity, 35 SETON HALL L. REV. 1241, 1244 (2005)
33. (citing WILLIAM LOREN KATZ, BLACK INDIANS: A HIDDEN HERITAGE 57 (1986)).
34. Pratt, supra note 20, at 78-96 (discussing how each of the five tribes adopted slavery).
35. R. HALUBURTON, JR., RED OVER BLACK: BLACK SLAVERY AMONG THE CHEROKEE INDIANS 5 (1977). Prior to European contact, slavery among these tribes existed only in the context of intratribal slavery wherein the tribe took defeated enemies as slaves, and ultimately could adopt them into the tribe through marriage. See id.
36. LITTLEFIELD, supra note 21, at 200.
37. The forcible extraction of the Native American population from their indigenous lands in the southeastern region of the United States is commonly referred to as "removal." GRANT FOREMAN, INDIAN REMOVAL: THE EMIGRATION OF THE FIVE CIVILIZED TRIBES OF INDIANS 1-5 (1972). Removal began in 1829 when Andrew Jackson, a noted Indian fighter of Tennessee, became President of the United States.
38. See ANGIE DEBO, AND STILL THE WATERS RUN: THE BETRAYAL OF THE FIVE CIVILIZED TRIBES 4 (1940);
39. MURIEL H. WRIGHT, A GUIDE TO THE INDIAN TRIBES OF OKLAHOMA 63 (1951). Removal was devastating to the tribes. None of the tribes wanted to be relocated, but - realizing that they had no other real alternative - they negotiated treaties with the federal government exchanging their lands in the Eastern United States for land west of the Mississippi river. DEBO, supra, at 4-5. This land became known as "Indian Territory" and later as "Oklahoma," which is derived from the Choctaw words "okla" meaning "people" and "homma" or "humma" meaning "red." See WRIGHT, supra, at 4. One quarter of the Cherokee and Choctaw populations died during this journey, which became known as "The Trail of Tears." Id. at 58; DEBO, supra, at 5.
40. DEBO, supra note 25, at 3-4.
41. Pratt, supra note 20, at 75-91.
42. See generally id. at 75-96 (discussing the tribes' experience with slavery in the removal period).
43. See LITTLEFIELD, supra note 21, at 200. Some tribes also adopted laws regulating the marriage of tribe members to whites. Yarbrough, supra note 17, at 387. The reason for adopting these laws, however, was probably not to administer slavery, but rather to prevent whites from exploiting tribal lands and other resources through marriage to Indians. See generally Woods, supra note 15 (discussing Cherokee and Choctaw miscegenation laws).
44. Yarbrough, supra note 15, at 390.
45. Banks, supra note 19, at 211.
46. See RANDALL KENNEDY, INTERRACIAL INTIMACIES: SEX, MARRIAGE, IDENTITY, AND ADOPTION 283-84 (2003) ("Passing is a deception that enables a person to adopt specific roles or identities from which he or she would otherwise be barred by prevailing social standards.");
47. Angela Onwuachi-Willig, Undercover Other, 94 CAL. L. REV. 873 (2006);
48. see also ANNETTE GORDON-REED, THOMAS JEFFERSON AND SALLY HEMINGS: AN AMERICAN CONTROVERSY 53 (1997) (discussing Thomas Jefferson's emancipation of four slaves who were white enough in appearance to pass as white persons).
49. See infra Part III (discussing the role of tribal miscegenation law in protecting tribal sovereignty).
50. MURRAY R. WICKETT, CONTESTED TERRITORY: WHITES, NATIVE AMERICANS AND AFRICAN AMERICANS IN OKLAHOMA 1865-1907, at 6 (2000). Cherokee Nation v. United States, 12 I.C.C. 570, 573 (1963). It should be noted that the tribes tried to remain neutral, but received significant pressure from the southern states to join the Confederate cause. See id. at 571-72. Additionally, some dissenting factions of the tribes fought with the North. See id. at 575.
51. WICKETT, supra note 34, at 7; Pratt, supra note 20, at 96.
52. Pratt, supra note 20, at 96-97.
53. Id. at 75.
54. HALLIBURTON, supra note 23, at 4.
55. PURDUE, supra note 20, at 79.
56. Id. at 74-79.
57. See McLoughlin, supra note 20, at 373 (describing how the federal government provided "plows, hoes, spinning wheels, looms and other forms of technical assistance" to help the Indians develop an agrarian economy, in addition to sending missionaries as a condition of promises to build schools and teach reading, writing, and arithmetic).
58. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 315 (Harvey C. Mansfield & Delba Winthrop trans., Univ. Chicago Press 2000) (citation omitted).
59. Id.
60. Id.
61. Pratt, supra note 20, at 76.
62. Matthew L.M. Fletcher, The Insidious Colonialism of the Conqueror: The Federal Government in Modern Tribal Affairs, 19 WASH. U. J.L. & POL'Y 273 (2005) (extending Bell's interest-convergence theory to the context of tribal sovereignty);
63. see Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518, 523 (1980). Bell identified the convergence of the interests of whites with those of blacks as a partial rationale for the Supreme Court's decision in Brown to break with its long-held position supporting segregation. See id.
64. Fletcher, supra note 46, at 279.
65. See id. (arguing that, even in the modern era of self-determination, the respect for sovereignty extended to tribes has limits, with "the major limitation being that where non-Indian interests are affected, tribal self-government must give way").
66. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978) (citing Roff v. Burney, 168 U.S. 218 (1897) and Cherokee Intermarriage Cases, 203 U.S. 76 (1906)).
67. Gloria Valencia-Weber, Shrinking Indian Country: A State Offensive to Divest Tribal Sovereignty, 27 CONN. L. REV. 1281 (1995).
68. Act of June 28, 1898, ch. 517, 30 Stat. 495. The Act provided in relevant part: "Said commission is authorized and directed to make correct rolls of citizens by blood . . . . Said commission . . . is authorized to take a census of each of said tribes, or to adopt any other means by them deemed necessary to enable them to make such rolls." Id.
69. Jeanette Wolfley, Jim Crow, Indian Style: The Disenfranchisement of Native Americans, 16 AM. INDIAN L. REV. 167, 169 (1991);
70. KENT CARTER, THE DAWES COMMISSION AND THE ALLOTMENT OF THE FIVE CIVILIZED TRIBES 1893-1914, at 20-23 (1999).
71. The Dawes Commission took the name of its chairman, Henry L. Dawes, a lawyer and former Republican Senator from Massachusetts who spoke out against slavery and considered himself a friend of the Indian people. CARTER, supra note 52, at 3.
72. Act of June 28, 1898 § 11.
73. See id. § 21.
74. See id. § 15.
75. See, e.g., Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). In Cherokee Nation, the Cherokee asked the Supreme Court to grant an injunction after Georgia enacted laws subjecting the Cherokee to the state's jurisdiction, claiming ownership to Cherokee gold and silver mines, making it a crime for Cherokees to work these mines, and authorizing the taking of Cherokee lands so that they could be distributed to white settlers through a lottery. Id. Rather than deciding the case on the merits, the Court held that the Cherokee Nation was not a foreign state, as that term is used in the Constitution, and therefore could not maintain the action in the Supreme Court. Id. States continue to fail to recognize tribal sovereignty. See, e.g., Laurie Reynolds, Indian Hunting and Fishing Rights: The Role of Tribal Sovereignty and Preemption, 62 N.C. L. REV. 743 (1984) (discussing state encroachment on tribal sovereignty through regulation of hunting and fishing); Valencia-Weber, supra note 50 (discussing how the extension of the state taxation power has encroached on tribal sovereignty).
76. DE TOCQUEVILLE, supra note 42, at 320-21 n.21 (noting that in 1829, the state of Alabama divided Creek territory into counties and subjected Creek Indians to Alabama law, and that in 1830, the state of Mississippi enacted laws which it made applicable to the Choctaws and the Chickasaws).
77. McLoughlin, supra note 20, at 382.
78. "Mulatto" signified people of mixed African and Caucasian ancestry. Law defined the term as "a person having one-eighth or more of Negro ancestry." Perez v. Sharp, 198 P.2d 17, 21 (1948).
79. Polygenesis was a theory of human origin that held that the different races descended from various sets of original parents, rather than just Adam and Eve. James Muldron, Spiritual Freedom - Physical Slavery: The Medieval Church and Slavery, 3 AVE MARIA L. REV. 69, 91 (2005).
80. Francis Galton founded the eugenics movement in 1865. See Francis Galton, Hereditary Talent and Character, MACMILLAN'S MAG. (1865). Eugenics was a theory of microbiology based on advancements in the understanding of genetics, which allowed scientists to develop stronger breeds of plants and animals.
81. See DANIEL KEVLES, IN THE NAME OF EUGENICS 3-4 (1985). Galton thought that this process of selective breeding could be applied to humans, ridding the human race of the undesirables. Id. He believed that society could "produce a highly gifted race of men by judicious marriages during several consecutive generations." Id at 4.
82. Social Darwinism was a theory used to "celebrate the fittest individuals who were said to survive and flourish because of their fitness. It served to justify social practices that were indifferent or hostile to [persons perceived as] less fit [such as blacks]." Richard E.D. Schwartz, Law, Society and Democracy: Comparative Perspectives: Sociolegal Evolution: An Introduction, 603 ANNALS 8, 15 (2006);
83. see also Ellen E. Sward, Justification and Doctrinal Evolution, 37 CONN. L. REV. 389-91 nn.4-5 (2004).
84. RICHARD HENRY PRATT, BATTLEFIELD AND CLASSROOM: FOUR DECADES WITH THE AMERICAN INDIAN, 1867-1904, at xxi, xxvi (Robert M. Utley ed., 1964);
85. see also Carlisle Indian Industrial School Research Pages, http://home.epix.net/~landis/ (last visited Feb. 19, 2007).
86. PRATT, supra note 64, at xxi ("[T]he school educated, in all, 4,903 Indian boys and girls from seventy-seven tribes."); see also Tribal Enrollment Tally, http://home.epix.net/~landis/tally. html (last visited Feb. 19, 2007). Barbara Landis, an independent researcher and Library Specialist on the Carlisle Indian Industrial School, Cumberland County Historical Society Library, Carlisle, Pennsylvania, wrote and maintains the site. Id.
87. Richard Henry Pratt, the first superintendent of Carlisle Indian Industrial School, articulated its mission. Pratt believed that the segregation of Indians from whites through the reservation system operated to the detriment of Indians, making them dependent upon the federal government. PRATT, supra note 64, at xi. He believed that Indians should be educated in the ways of "civilized life" and fully integrated into the American polity. Id. Pratt wrote a letter to Senator Henry Dawes, articulating the continued need for the school in Carlisle, Pennsylvania. Id. at 264-66. The U.S. government wanted the Five Tribes to agree to the allotment of tribal land - which had traditionally been held collectively - to individual Indians. Pratt, supra note 20, at 98. The tribes, however, refused to acquiesce, so Congress passed a law directing Dawes commissioners to negotiate with the Five Tribes for the extinguishment of tribal title. Id. at 98; Stephens v. Cherokee Nation, 174 U.S. 445 (1899). In his letter, Pratt suggested to Dawes that Indian boarding schools would conveniently create a generation of Indians who would not only yield to the idea of land allotment, but would want it. PRATT, supra note 64, at 266. Pratt wrote: "If the proper system of education is adopted . . . lands in severalty and citizenship will be a natural result, and the Indians themselves demanding it, and just this spirit which you propose and which can be implanted in Indian children is a necessary part of that education." Id.
88. PRATT, supra note 64, at 283.
89. Richard Henry Pratt, The Advantages of Mingling Indians with Whites, in AMERICANIZING THE AMERICAN INDIANS: WRITINGS BY THE "FRIENDS OF THE INDIAN" 1880-1900, at 261 (Francis Paul Prucha ed., 1973).
90. See Act of July 1, 1898, ch. 545, 30 Stat. 571.
91. Hayes Peter Mauro, Made in the U.S.A.: Americanizing Aesthetics at Carlisle 190, 201, 202, 211, 213 (2006) (unpublished manuscript, on file with author).
92. JACQUES W. REDWAY & RUSSELL HINMAN, NATURAL ADVANCED GEOGRAPHY 33 (1898).
93. Id. at 32-34. This theory corresponded with the Christian teaching that me races represent the descendants of the sons of Noah, with the Mongolian race being attributed to Japheth, the Ethiopian or black race being attributed to Ham, and the Caucasian race being attributed to Shem. See SAMUEL GEORGE MORTON, CRANIA AMERICANA 2 n.† (Philadelphia, J. Dobson 1839). Other race scientists categorized the "varieties of the human species" into five races. Id. at 3. Samuel Morton, known for his ranking of the races based on cranial capacity, subscribed to Professor Johann Friedrich Blumenbach's theory, which used physical appearance, geographical proximity, and language to divide the human species into five races: Caucasian, Mongolian, Malay, Native American, and Ethiopian (Negro). Id. at 5-7. Morton's use of cranial capacity assumed that the corollary to a larger skull was a larger brain, which in turn entailed higher intellect. Id. Morton embraced the notion of a racial hierarchy, ranking the races by intellect; the Caucasian race was the most intelligent, and the Negro the least. Id. at 1-95. He afforded Native Americans an intermediate rank. See id. Morton imported the racial stereotypes of his day into his research, noting that Native Americans appear to be of a decidedly inferior cast when compared with those of the Caucasian or Mongolian races. They are not only averse to the restraints of education, but for the most part incapable of a continued process of reasoning on abstract subjects. Their minds seize with avidity on simple truths, while they at once reject whatever requires investigation and analysis. Id. Race scientists eventually divided the existing racial categories into further subdivisions. As a result, anthropologist Daniel Folkmar recognized forty-five races by 1911.
94. Peggy Pascoe, Miscegenation Law, Court Cases, and Ideologies of "Race" in Twentieth-Century America, 83 J. AMER. HIST. 44, 54 (1996).
95. RACE AND MEMBERSHIP IN AMERICAN HISTORY: THE EUGENICS MOVEMENT 59-60 (Alan Stoskopf & Margot Stern Strom eds., 2002).
96. Id.
97. See generally id. at 47-52. There was even some debate about whether blacks were human at all. Muldron, supra, note 61, at 91; See generally RACE AND MEMBERSHIP IN AMERICAN HISTORY: THE EUGENICS MOVEMENT 47-52; KEVLES, supra note 61.
98. LOUIS MENAND, THE METAPHYSICAL CLUB 109-10 (2001).
99. Id. at 110.
100. See id. at 114.
101. See id.
102. Id.
103. Id.
104. Id. at 115-16.
105. Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707, 1718 (1993).
106. See Harris, supra note 83, at 1718.
107. See State v. Treadaway, 126 La. 300, 52 So. 500 (1910) (surveying the segregation laws of other states, which predominantly took a binary approach). The court noted that "colored persons" was generally used to refer to people with African ancestry. Id. at 321. Even Oklahoma - which had been known as "Indian Territory" and had a large Indian population - chose to only preclude intermarriage between "colored and white" people. The law defined "colored" as anyone of African ancestry - essentially a "one drop" standard; "white" included all other persons, including Indians. Maillard, supra note 15 at 161 n.398 (citing PETER WALLENSTEIN, TELL THE COURT I LOVE MY WIFE: RACE, MARRIAGE, AND LAW - AN AMERICAN HISTORY 143 (2002)). The one-drop rule - also known as the rule of hypodescent - provided that anyone with any known African ancestry was racially black.
108. See Ariela J. Gross, Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South, 108 YALE L.J. 109, 114-19 (1998); cf. Rice v. Gong Lum, 104 So. 105, 110 (1925) (construing a statute requiring segregated education of white and "colored" children to mean that a non-white child who is not Negro is not entitled to attend a white public school).
109. See BOOKER T. WASHINGTON, UP FROM SLAVERY 47 (Dover 1995) (1901) ("[N]o white American ever thinks that any other race is wholly civilized until he wears the white man's clothes, eats the white man's food, speaks the white man's language, and professes the white man's religion.").
110. Pascoe, supra note 72, at 55 (quoting RUTH BENEDICT, RACE: SCIENCE AND POLITICS 12 (1940)).
111. For an explanation of the concept of "performing identity," see Devon W. Carbado & Mitu Gulati, Working Identity, 85 CORNELL L. REV. 1259 (2000)
112. See Gross, supra note 85, at 156.
113. See id.
114. Gross coined the term "performing whiteness" to explain how individuals whose legal race was in question introduced evidence in court to demonstrate that the particular individual "performed" a white identity, in an effort to prove that the person was, in fact, white. Id. She gave several examples, including one litigant who had people testify that he attended whites-only parties, and was regarded by other whites as a white gentleman. See id. at 159.
115. This idea is based on the work of Professors Devon Carbado and Mitu Gulati. See generally Carbado & Gulati, supra note 88 (discussing racial identity in the employment context). Carbado and Gulati point out that all employees have an incentive to act in ways that signal their worth to their employer. See id. at 1263. They argue that all employees perform an identity in the workplace, but that outsiders - such as women and racial minorities - are likely to feel they must do "'extra' identity work to counter [negative] stereotypes" about their identity. Id. at 1262. They call this situation - the "nature of the work and the pressure to do it" - the "working identity phenomenon," and argue that it is a form of employment discrimination. Id.
116. Id. at 97 and 98 n.142.
117. Id. at 130-149.
118. Id.
119. Id. at 98 n. 142.
120. Id. at 133.
121. These photographs are maintained in the archives at Yale University. See http://webtext.library.yale.edu/xml2html/beinecke.PRATT.con.html (last visited Sept. 5, 2006).
122. Mauro, supra note 70, at 95-97.
123. PURDUE, supra note 20, at 53-56, 73, 87.
124. The tribal desire to be viewed as civilized is evident in the writings of Antoinette Snow Constant, a Christian missionary who served as a teacher for the Seminoles. See Papers of Antoinette Snow, OHS Archives, Oklahoma History Center Library, OKC, OK (on file with author). Snow wrote several letters appealing the death sentence of a Seminole woman convicted of witchcraft, and recorded the substance of her lobbying efforts in her journal. Id. Snow played upon the tribe's desire to maintain its "civilized" status, warning the Seminole leadership that sentencing a woman to death for witchcraft demonstrated an adherence to superstitions which civilized people reject. Id. The teacher carefully warned the tribal leadership that whites in power might begin to question the tribe's civilized status if they killed a person for witchcraft. Id. In writing to the Chief of the Seminole tribe and the Seminole Council she stated: I appeal to you . . . in the cause of our Christian faith and Indian civilization, to spare the life of that unfortunate woman now under sentence of death . . . for the so called crime of witchcraft. You now represent a civilized Tribe. You have friends . . . who are pleading for Indian rights. But when you . . . will condemn and shoot to death a defenseless old woman, for the superstitious idea of witchcraft, what more can your friends [whites] say in your defense? The day is fast dawning on your tribe, when this act of yours will be stamped as a crime. It will be a stigma on the Seminoles and a barrier in the way of your friends doing you good in the future. Be above this cruel act, so that civilization may not be impeded and false impressions made on the young who are the hope of your race. In the name of all that is holy and elevating in the future welfare of your people, I pray you, stay the . . . executioner. If evil comes of this act, remember your friend warned you in time to avert it. Mrs. Snow signed the letter "[i]n the cause of Indian civilization, I am your friend. Mrs. Antoinette Snow Constant, June 7th 1880." Id.
125. A. Leon Higginbotham, Jr. & Barbara K. Kopytoff, Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia, 77 GEO. L.J. 1967, 1976-77 (1989).
126. LANI GUINIER & GERALD TORRES, THE MINER'S CANARY: ENLISTING RACE, RESISTING POWER, TRANSFORMING DEMOCRACY 224-25 (2002).
127. Id. at 225.
128. While Guinier and Torres identify Latinos as the most readily identifiable group to whom the racial bribe has been offered, they acknowledge that other groups have been offered the bribe as well, including Jewish, Irish, and Italian immigrants. Id. at 226.
129. Id. at 225.
130. See Pascoe, supra note 72, at 49 (noting that many miscegenation laws permitted intermarriage between whites and Indians, and only twelve states ultimately precluded Indian marriage to whites).
131. See Harris, supra note 83, at 1725 (describing some of me benefits associated with being white); see also Reginald Oh, Regulating White Desire, 2007 WIS. L. REV. 463 (arguing that state miscegenation laws were aimed at regulating white desire for colored bodies in an effort to maintain the property value of whiteness);
132. Peggy McIntosh, White Privilege And Male Privilege: A Personal Account of Coming to See Correspondences Through Work In Women's Studies (1988), in LESLIE BENDER & DAAN BRAVEMAN, POWER PRIVILEGE AND LAW: A CIVIL RIGHTS READER 22-33 (1995) (chronicling the privileges of whiteness);
133. Stephanie M. Wildman, The Persistence of White Privilege, 18 WASH. U. J.L. & POL'Y 245 (2005); Hernández, supra note 19, at 117-21 (discussing the desire of white parents to give their biracial children the benefits of whiteness).
134. See, e.g., Pratt, supra note 68, at 260-61; DAVID WALLACE ADAMS, EDUCATION FOR EXTINCTION: AMERICAN INDIANS AND THE BOARDING SCHOOL EXPERIENCE, 1875-1928, at 51-53 (1995).
135. Claudio Saunt has opined that intermarriage with whites gave Indians the means and the will to become active participants in a slave economy. "Their [white] fathers gave them the skills - the ability to speak English, to read and write - and the desire to pursue wealth through slavery." Claudio Saunt, A Conversation With Dr. Claudio Saunt, 1 VOICES OF INDIAN TERRITORY 58, 60 (2005). Orlando Patterson has called this exchange of culture in interracial marriages "cultural dowries."
136. See Orlando Patterson, The Nexus Between Race and Policy: Interview with Orlando Patterson, Professor of Sociology at Harvard Univ., 4 GEO. PUBLIC POL'Y REV. 107, 112 (1999).
137. See MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960S TO THE 1990s, at 65-66 (2d ed. 1994). Professors Michael Omi and Howard Winant describe the United States as a "racial dictatorship" from 1607 to 1865 because nonwhites were excluded from the political sphere. Id. They list some consequences of this racial dictatorship, including defining American identity as white; organizing the color line as the fundamental division in American society; and creating an oppositional racial consciousness and organization, in which the identity of nonwhites was measured against the identity of whites, and nonwhites were lumped into overly broad categories which ignored cultural difference. See id. at 66. For example, whites would see all Indians as one category, instead of differentiating between the Creek, Cherokee, or Choctaw. See id.
138. See DE TOCQUEVILLE, supra note 42, at 312-13 ("The Indians of North America had only two options for salvation: war or civilization; in other words they had to destroy the Europeans or become their equals.").
139. See, e.g., Pratt, supra note 20, at 81 (discussing laws that the Cherokees enacted to implement black slavery).
140. See, e.g., THE CONSTITUTION AND LAWS OF THE CHOCTAW NATION 27 (Mission Press 1847).
141. See, e.g., Cherokee Intermarriage Cases, 203 U.S. 76, 87 (1906).
142. Id.
143. See John D.W. Guice, Face to Face in Mississippi Territory, 1798-1897, in THE CHOCTAW BEFORE REMOVAL 157, 172 (Carolyn Keller Reeves ed., 1985).
144. See Higginbotham & Kopytoff, supra note 102, at 13 (quoting Act XII, 2 LAWS OF VA. 170, 170 (Hening 1823) (enacted 1662)).
145. Id.
146. See James Oliver Horton & Lois E. Horton, A Federal Assault: African Americans and the Impact of the Fugitive Slave Law of 1850, 68 CHI.-KENT. L. REV. 1179, 1195 (1993). The kidnapping of people who looked like they were black was not limited to Indian Territory.
147. A. Leon Higginbotham, Jr. & F. Michael Higginbotham, "Yearning To Breathe Free": Legal Barriers Against and Options in Favor of Liberty in Antebellum Virginia, 68 N.Y.U. L. REV. 1213, 1267 n.324 (1993). Warren Hall, a free person of Indian and African ancestry, is an example of black Indians falling prey to kidnapping in the South. See Hall v. United States, 9 Ct. Cl. 170, 173 (1873). Hall sued for possession of cotton, claiming that he was entitled to it pursuant to a contract he had made with a white man. Despite the fact that the court recognized that Hall was born to a free woman, it rejected his claim because he had been a slave at the time the contract was executed; therefore, he was unable to contract. See id. at 173, 175-76. Hall argued that his enslavement was unlawful because he had been kidnapped and sold into slavery at a young age, but the court saw his failure to sue for his freedom as determinative of his status and denied his claim. See id. at 173-74, 176. For the personal narrative of an African man who escaped the clinches of white kidnappers, see Higginbotham, supra note 102, at 1267 n.324.
148. THEDA PURDUE, MIXED BLOOD INDIANS: RACIAL CONSTRUCTION IN THE EARLY SOUTH 6 (2005).
149. See CONSTITUTION AND LAWS OF THE CHOCTAW NATION § 5, supra note 114, at 61.
150. Id.
151. Id.
152. Id.
153. Banishment laws for free blacks were not an indigenous invention; Virginia enacted a banishment law in 1806. See Higginbotham & Higginbotham, supra note 120, at 1266. The Choctaw may have taken the idea for banishment of blacks from their neighboring slaveholding states.
154. See Paul Finkelman, "Let Justice Be Done, Though the Heavens May Fall": The Law of Freedom, 70 CHI.-KENT. L. REV. 325, 333 (1994) (noting that the presence of free blacks in slaveholding territories threatened slavery in that it would have influenced the behavior of slaves).
155. See Yarbrough, supra note 15, at 392.
156. See id. Some Indian men refused to do agricultural work because when the tribes were more nomadic, the men hunted and the women tended to agricultural work. See id.
157. See, e.g., Regina Austin, Sapphire Bound!, 1989 WIS. L. REV. 539, 570 ("Jezebel was the wanton, libidinous black woman whose easy ways excused white men's abuse of their slaves as sexual 'partners' and bearers of mulatto offspring."
158. (citing D. WHITE, AR'N'T I A WOMAN? FEMALE SLAVES IN THE PLANTATION SOUTH 46, 61 (1985))).
159. SCOTT L. MALCOMSON, ONE DROP OF BLOOD: THE AMERICAN MISADVENTURE OF RACE 90 (2000).
160. Id. For a discussion of the 1824 Cherokee miscegenation law, see Woods, supra note 15, at 65-66.
161. MALCOMSON, supra note 131, at 90.
162. Id.
163. Woods, supra note 15, at 64-65 (discussing the "cultural and political solidarity" resulting from affirming "Indianness" as a unique identity).
164. Id.
165. See discussion infra note 145 and accompanying text.
166. Theda Purdue, Clan and Court: Another Look at the Early Cherokee Republic, 24 AM. INDIAN Q. 562, 565 (2000).
167. Id.
168. RENNARD STRICKLAND, FIRE AND THE SPIRITS: CHEROKEE LAW FROM CLAN TO COURT 99 (1975).
169. THEDA PURDUE, CHEROKEE WOMEN: GENDER AND CULTURE CHANGE, 1700-1835, at 150-51 (1998).
170. Purdue, supra note 138, at 562.
171. Id.
172. Id.
173. Id. at 563. Because the law at this time restricted enslavement to people of African ancestry, it is a virtual certainty that Chickaw was a "Negro." See Berta Esperanza Hernández-Truyol & Shelbi D. Day, Property, Wealth, Inequality and Human Rights: A Formula for Reform, 34 IND. L. REV. 1213, 1241 n.9 (2001) ("Nineteenth-century lawmakers invoked race to define personal status. Slavery, for example, attached exclusively to black people."
174. (citing KERMIT L. HALL ET AL., AMERICAN LEGAL HISTORY: CASES AND MATERIALS 245 (2d ed. 1996)). It is unclear whether Chickaw was mulatto and therefore resembled the Cherokee. Furthermore, Dent - a man trying to save himself from death - would conceivably purchase a slave whose physical appearance would be akin to the Cherokee.
175. Purdue, supra note 138, at 563.
176. Id. Molly's marriage to a Cherokee Indian man probably occurred long before the 1824 Cherokee miscegenation law. Assuming that she was between ten and fifteen years old when adopted by the Deer Clan, she would have been of marrying age during the 1780s and 1790s.
177. Id.
178. Id. at 565.
179. See id.
180. See id. at 568. It is uncertain whether the outcome of this case would have been the same had it been brought in state court. Given the states' history of privileging the property interests of whites over those of Indians, it is not difficult to imagine that a state court would have ordered Chickaw and her children returned to Hightower as slaves.
181. Id.
182. The case of Chickaw and the Deer Clan may also provide precedent for a recent Cherokee Supreme Court case, Allen v. Cherokee Nation Tribal Council, JAT 04-09 (2006), which held that African American descendants of Cherokee freedmen are citizens of the Cherokee Nation and mat the Nation is a political community rather than a racially homogenous one.
183. Terrion L. Williamson, The Plight of "Nappy-Headed" Indians: The Role of Tribal Sovereignty in the Systematic Discrimination Against Black Freedmen by the Federal Government and Native American Tribes, 10 MICH. J. RACE & L. 233, 242 (2005)
184. (quoting KENNETH WIGGINS PORTER, THE NEGRO ON THE AMERICAN FRONTIER 73 (1971)).
185. CONSTITUTION, LAWS, AND TREATIES OF THE CHICKASAWS 96 (Scholarly Res., Inc. 1975) (1860).
186. Id.
187. Id.
188. Introduction to LAWS OF THE CREEK NATION 1 (Antonio J. Waring ed., 1960).
189. See id.; Christine Zuni, Strengthening What Remains, 7 KAN. J.L. & PUB. POL'Y 17, 26 (1997) (referencing the oral tradition of tribal law);
190. Sarah Deer, Toward an Indigenous Jurisprudence of Rape, 14 KAN. J.L. & PUB. POL'Y 121, 143 (2004) (referencing the oral tradition of law in indigenous culture).
191. LAWS OF THE CREEK NATION, supra note 158, at 21.
192. See id.
193. Id. at 21 (law 20). This reference to "children" should not be interpreted as "minor children" but rather as a reflection of the fact that it was probably the elders of the tribe who were the legislators and administrators of the law. A literal interpretation would make little sense given that most candidates for marriage were probably adults.
194. Id.
195. Eva Saks, Representing Miscegenation Law, RARITAN, Fall 1988, at 39, 42.
196. See id. at 49.
197. Id.
198. Id.
199. See id. at 55.
200. Pratt, supra note 20, at 71 n.37.
201. See, e.g., THE WPA OKLAHOMA SLAVE NARRATIVES 440 (T. Lindsay Baker & Julie P. Baker eds., 1996);
202. BLACK INDIAN SLAVE NARRATIVES (Patrick Minges ed., 2004);
203. Celia E. Naylor-Ojurongbe, "Born and Raised Among These People, I Don't Want to Know Any Other": Slaves' Acculturation in Nineteenth-Century Indian Territory, in CONFOUNDING THE COLOR LINE: THE INDIAN-BLACK EXPERIENCE IN NORTH AMERICA 161 (James F. Brooks ed., 2002) (examining the black Indian slave narratives from a historical perspective);
204. see also Fay A. Yarbrough, Power, Perception, and Interracial Sex: Former Slaves Recall a Multiracial South, 71 J. S. HIST. 559 (2005).
205. Yarbrough, supra note 170, at 582; Naylor-Ojurongbe, supra note 170, at 161, 163.
206. TIYA MILES, TIES THAT BIND: THE STORY OF AN AFRO-CHEROKEE FAMILY IN SLAVERY AND FREEDOM, at xiii (2005).
207. Destro, supra note 4, at 1222; Woods, supra note 15, at 70; Ota, supra note 7, at 724; Gabriel J. Chin, Preserving Racial Identity: Population Patterns and the Application of Anti-Miscegenation Statutes to Asian Americans 1910-1950, 9 ASIAN L. J. 1, 28 (2002);
208. Dorothy E. Roberts, The Genetic Tie, 62 U. CHI. L. REV. 209, 224 (1995);
209. Reginald Oh, Defining The Voices of Critical Race Feminism: Interracial Marriage in the Shadows of Jim Crow: Racial Segregation as a System of Racial and Gender Subordination, 39 U.C. DAVIS L. REV. 1321, 1324-35 (2006);
210. Paul Finkelman, The Crime of Color, 67 TUL. L. REV. 2063, 2083 (1993).
211. See supra notes 100-14 and accompanying text.
212. See Woods, supra note 15, at 62; PURDUE, supra note 20, at 29-30; Yarbrough, supra note 15, at 387. Yarbrough also discusses the Cherokee law that sought to protect the Nation's interests by strictly regulating white men's marriage to Cherokee Indian women. Yarbrough notes that the white man had to obtain a license, swear an oath to the Cherokee Nation, pay a fee, and have a certificate of good moral character signed by seven Cherokee citizens. Id. at 399.
213. Washington wrote about the operation of segregation, which he called the "curious working of caste in America." BOOKER T. WASHINGTON, UP FROM SLAVERY 87 (W. Fitzhugh Brundage ed., Bedford/St. Martin's 2003) (1901) In his second autobiography, Washington recounted how an Indian student had taken ill while studying at Hampton in Virginia, and Washington had been charged with the task of accompanying the student to the Secretary of the Interior, so that the student could be sent back to his family on the reservation. Id. During the journey to Washington, D.C., the pair traveled on a steamboat, and when they tried to enter the dining room the attendant informed them that "the Indian could be served, but [Washington] could not." Id. Washington again notes the boundaries of segregation when recounting how he and the Indian tried to acquire accommodations at a hotel, but the hotel clerk informed Washington that while the hotel could accommodate the Indian, it would not receive Washington as a guest. Id.
214. Act of June 30, 1834, ch. 161, 4 Stat. 729 (1834) (titled "An Act to Regulate Trade and Intercourse with the Indian Tribes, and to Preserve the Peace of the Frontiers").
215. Id. § 25.
216. United States v. Rogers, 45 U.S. (4 How.) 567, 571 (1846).
217. Id.
218. Id.
219. Id.
220. Id.
221. Id.
222. Id. at 573.
223. Id. at 572-73.
224. Id. at 573.
225. See id.
226. I reject the argument that race is a fixed biological category. Instead, I view race as an ever-changing, socially and legally constructed, political project that uses biologically inherited markers to assign people to various categories. This Article refers to race here in biological terms because that is how American society - including the Court - viewed race in the mid-nineteenth century.
227. See LÓPEZ, supra note 19, at 116.
228. See Rogers, 45 U.S. at 571.
229. See generally Robert B. Porter, A Proposal to the Hanodaganyas to Decolonize Federal Indian Control Law, 31 MICH. J.L. REFORM 899 (1998) (arguing that the federal government should decolonize Indian nations by relinquishing its hegemonic control over them). "Hanodaganyas" means "town destroyer" in the Seneca Indian language. Id. at 900 n.1.
230. See Rogers, 45 U.S. at 571.
231. 162 U.S. 499 (1896).
232. Id. at 501.
233. Id. at 500-01 (citing Treaty with the Cherokee Indians, U.S.-Cherokee Nation, art. IX, July 19, 1866, 14 Stat. 799, 801).
234. See id.
235. See id. at 501.
236. See id.
237. See id. The tribal matrilineal tradition was frequently proffered as the rationale for excluding black Indians from the tribal rolls. See id. at 33 & n.267, 36. But even when black Indians inherited the Indian component of their identity from their mother, they were subject to being placed on the freedmen roll. See Sango v. Willig, 249 P. 203 (1926). Sango sought to rescind the sale of her allotted land under the theory that the law restricted her from selling the land since she was a blood Indian. Sango's mother was a blood Indian listed on the Blood roll, but Sango was on the freedmen roll due to her patrilineal African ancestry. The court held that the Dawes Commission's determination that Sango was a freedman was final and therefore her land was alienable.
238. Id. Partus sequitur ventrem dictates that a child takes the status of the mother. See Paul Spruhan, A Legal History of Blood Quantum in Federal Indian Law to 1935, 51 S.D. L. REV. 1, 22-23 (2006). The tribal matrilineal tradition was frequently proffered as the rationale for excluding black Indians from the tribal rolls. See id. at 33 & n.267, 36. But even when black Indians inherited the Indian component of their identity from their mother, they were subject to being placed on the freedmen roll despite their matrilineal Indian ancestry. See, Sango v. Willig, 119 Okla. 128, 249 P. 203 (1926) (wherein plaintiff Sango sought to rescind the sale of her allotted land under the theory that the law restricted her from selling the land since she was a blood Indian. Sango's mother was a blood Indian enrolled on the Blood roll, but Sango was enrolled on the freedmen roll due to her African ancestry inherited through her patrilineal line of ancestors. The court held that the Dawes commission's determination of Sango as a freedman and not an Indian was final and therefore her land was alienable). Moreover, because most black Indians received the Indian component of their identity from their father, they were excluded from the tribe under the matrilineal rule. One example of this exclusion is the case of Morris Impson, a Choctaw Indian who had children with a woman of African descent named Lucy. Sworn testimony of Morris and Lucy Impson (in Choctaw) recorded, with the aid of an interpreter, by the Department of the Interior. S. Doc. 5013 Ex. J, reprinted in 1 VOICES OF INDIAN TERRITORY, supra note 110, at 26. After Morris' first wife died in the late nineteenth century, he married Lucy and legitimated their three children. Id. Despite this legitimation, the Dawes Commission refused to enroll Morris and Lucy's children on the "Blood Roll" and instead placed the children on the freedman roll. Id. In 1906, Morris challenged the Commission's refusal to recognize his children as Choctaw Indians by blood. Id. at 26. In addition to the matrilineal rule, the Dawes Commission may have refused to enroll the Impson children as "blood Indians" because Morris' marriage to Lucy was in contravention of the miscegenation law of Indian Territory and therefore, as a matter of law, was ineffective in legitimating the Impson children. This issue was noted by the lawyer for the Dawes Commission while taking the deposition of Lucy Impson. Id. at 33. The lawyer refers to chapter 48 of "Mansfield's Digest" which was the publication containing the laws of Arkansas. In 1890, Congress adopted an act that made the laws of Arkansas applicable to Indian Territory. See Act of May 2, 1890, ch. 182, § 31, 26 Stat. 81, 94-95. Although the Impsons could not recall the year in which they married, their other testimony suggested that they were likely married around the time of the enactment of the Indian Territory miscegenation law. Sworn testimony of Morris and Lucy Impson, supra, at 26-33.
239. Alberty, 162 U.S. at 501.
240. See Spruhan, supra note 201, at 1.
241. See id. at 5.
242. id. (citing Act of Feb. 27, 1866, ch. 17, § 1, 1866 Va. Acts 84, 84).
243. See id. at 9.
244. Id. at 11 n.75.
245. See Ann McMullen, Blood and Culture: Negotiating Race in Twentieth-Century Native New England, in CONFOUNDING THE COLOR LINE, supra note 170, at 261, 264.
246. Miller v. Allen, 229 P. 152, 154 (Okla. 1924); Plessy v. Ferguson, 163 U.S. 537, 552 (1896).
247. See Circe Sturm, Blood Politics, Racial Classification, and Cherokee National Identity: The Trials and Tribulations of the Cherokee Freedmen, 22 AM. INDIAN Q. 230, 249 (1998). The Cherokees prided themselves in being light skinned and adopted the dominant society's bias against dark skin. See id.
248. See, e.g., Alberty, 162 U.S. at 501 (stating that offspring of a Negro and an Indian is Negro). Race science abounded during the nineteenth and early twentieth centuries. See generally, Herbert Hovenkamp, Social Science and Segregation Before Brown, 1985 DUKE L.J. 624, 627, 632, 651-57 (1985). For a history of the eugenics movement see, KEVLES, supra note 62.
249. See McMullen, supra note 208, at 264.
250. Id. The Pamunkey Indians also carryied membership cards to ensure that they were not mistaken for blacks. See Laura L. Lovett, "African and Cherokee by Choice": Race and Resistance Under Legalized Segregation, 22 AM. INDIAN Q. 203, 222 (1998).
251. See Lovett, supra note 213, at 233 (1998).
252. Margo S. Brownell, Who Is an Indian? Searching for an Answer to the Question at the Core of Federal Indian Law, 34 MICH. J.L. REFORM 275, 288 (2001).
253. See id.
254. Id.
255. See, e.g., Mark D. Myers, Federal Recognition of Indian Tribes in the United States, 12 STAN. L. & POL'Y REV. 271 (2001) (discussing the process for federal recognition of Indian tribes).
256. Cherokee Nation v. Georgia, 30 U.S. (4 Pet.) 1, 17 (1831).
257. Id.
258. 180 U.S. 261, 266 (1901). E. Montoya & Sons, a company whose livestock had allegedly been taken by a group of Indians, sued the United States and the tribe in which the group of Indians were members. Id. at 261-62 & n.2. The company sued under the Indian Depredation Act, which provided compensation to victims of property destruction committed by Indians belonging to a tribe. See id. at 264-65. The issue in Montoya was whether the Indians accused of destroying property were still part of the tribe. See id. at 264. Hence, the Court had to define the term "tribe."
259. Id.
260. See Alberty v. United States, 162 U.S. 499, 501 (1896).
261. Gerald Torres & Kathryn Milun, Translating "Yonnondio" by Precedent and Evidence: The Mashpee Indian Case, in CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT 177, 181 (Kimberlé Crenshaw et al., 1995).
262. Id. at 180.
263. See id. at 186.
264. Id. at 181.
265. Id.
266. The Mashpees finally won federal recognition in March of 2006. See Megan Tench & Michael Kranish, Mashpees Near Federal Recognition, BOSTON GLOBE, Apr. 1, 2006, at A1;
267. BIA: Massachusetts Tribe 'Retained' Self-Governance, Indianz.com, Apr. 3, 2006, http://www.indianz.com/News/2006/013294.asp.
268. See WRIGHT, supra note 25, at 3.
269. Torres & Milun, supra note 224, at 181.
270. Samuel R. Cook, The Monacan Indian Nation: Asserting Tribal Sovereignty in the Absence of Federal Recognition, WICAZO SA REV., Fall 2002, at 91, 91-92.
271. See id. at 97.
272. Id. at 96.
273. Id. at 91, 97-98. For a thorough exploration of Walter Plecker's work to maintain the racial integrity of whites in Virginia, see Arica L. Coleman, Notes on the State of Virginia: Africans, Indians and the Paradox of Racial Integrity, at 109-14, 135-70 (2005) (unpublished manuscript, on file with author).
274. See Paul A. Lombardo, Miscegenation, Eugenics, and Racism: Historical Footnotes to Loving v. Virginia, 21 U.C. DAVIS L. REV. 421, 424, 433-34 (1988).
275. The Virginia Racal Integrity Act, ch. 371, 1924 Va. Laws (codified as VIR. CODE ANN. § 20-54 (1960 Repl. Vol.)), invalidated by Loving v. Virginia, 388 U.S. 1 (1967).
276. Cook, supra note 232, at 98 (describing how Walter Plecker had a "particular vendetta" against the Monacans due to their "stubbornly assert[ing] their 'Indianness'").
277. The Virginia Racal Integrity Act § 5. The concluding clause was included at the insistence of certain Virginia aristocrats who traced their ancestry to Pocahontas and John Rolfe. See Lombardo, supra note 236, at 434. Accordingly, this clause is commonly referred to as the "Pocahontas exception." Id.; Karen Woods Weierman, For the Better Government of Servants and Slaves: The Law of Slavery and Miscegenation, 24 LEGAL STUD. F. 133, 141 (2000). The Pocahontas exception demonstrates society's view that, after four generations, an otherwise white person's Indian component disappeared. See Lombardo, supra note 236, at 421-52. For a historical narrative of the politics leading to Pocahontas's marriage to John Rolfe, see Epps, supra note 6, at 1498-1500.
278. See Lombardo, supra note 236, at 436-40.
279. Crenshaw, supra note 13, at 113.
280. See supra note 72 and accompanying text.
281. See infra note 246 (describing how Indians were deemed competent to handle their own affairs once they had a certain percentage of white blood).
282. Crenshaw, supra note 13, at 113. For a survey of myriad antiblack stereotypes existing during the antebellum period, see General Introduction to ANTI-ABOLITION TRACTS AND ANTI-BLACK STEREOTYPES: GENERAL STATEMENTS OF "THE NEGRO PROBLEM," in 1 ANTI-BLACK THOUGHT, 1863-1925: "THE NEGRO PROBLEM": AN ELEVEN-VOLUME ANTHOLOGY OF RACIST WRITINGS (John David Smith ed., 1993).
283. Gross, supra note 85, at 142 n.121.
284. This ideology is evident in Congress's decision to restrict the land-alienation autonomy of full bloods who received land allotments, finding them incompetent due to their full-blood status, while finding Indian-white mixed bloods of a certain degree competent to handle their land-allotment affairs. Spruhan, supra note 201, at 41-42.
285. See Christine B. Hickman, The Devil and the One Drop Rule: Racial Categories, African Americans and the U.S. Census, 95 MICH. L. REV. 1161, 1184 (1997) (noting that mulattos were believed to lack the better properties associated with each of the full-blooded parents); KEVLES, supra note 62, at 75. Pratt apparently subscribed to the notion that mixed-blood blacks were inferior to all pure racial categories. In his autobiography, he describes a group of people of both African and Indian ancestry as "degraded Negroes." PRATT, supra note 64, at 214.
286. These competing understandings of the consequences of race mixing explain the inconsistencies in miscegenation discourse regarding the relative position of "hybrid" people in the racial hierarchy. Compare JACK WEATHERFORD, NATIVE ROOTS: HOW THE INDIANS ENRICHED AMERICA 278 (1991) (encouraging interracial marriages), and Spruhan, supra note 201, at 32 (quoting 27 Cong. Rec. 2614 (1895) (statement of Sen. Higgins)) (advocating the dilution of Indians through interracial marriage), with Scott v. State, 39 Ga. 321, 323-24 (1869) (containing dicta in support of miscegenation law). Some people of African ancestry shared the view that mixed-race people were more degraded than either parent. Yarbrough, supra note 170, at 573. Law adopted this view in the mid-nineteenth century: The amalgamation of the races is not only unnatural, but is always productive of deplorable results. Our daily observation shows us, that the offspring of these unnatural connections are generally sickly and effeminate, and that they are inferior in physical development and strength, to the full-blood of either race. It is sometimes urged that such marriages should be encouraged, for the purpose of elevating the inferior race. The reply is, that such connections never elevate the inferior race to the position of the superior, but they bring down the superior to that of the inferior. They are productive of evil, and evil only, without any corresponding good. Scott, 39 Ga. at 323-24.
287. Maillard, supra note 15, at 159.
288. See Pascoe, supra note 72, at 49 (discussing how all but twelve states eventually allowed Indian-white unions).
289. Spruhan, supra note 201, at 32 (quoting 27 CONG. REC. 2614 (1895) (statement of Sen. Higgins)).
290. WEATHERFORD, supra note 247, at 278.
291. Id.
292. Rashmi Goel, From Tainted to Sainted: The View of Interracial Relations as Cultural Evangelism, 2007 WIS. L. REV. 489.
293. See Loving v. Virginia, 388 U.S. 1, 5 (1967) (citing VA. CODE ANN. § 20-54 (1960)).
294. Cook, supra note 232, at 97.
295. Id. Although twentieth-century anthropologist Laurence Foster agreed with Plecker's assessment of the extent of the mixing of black blood with Indian blood in Virginia, he did not agree that this mixture extinguished Indian identity: "Even though the present-day Indian leaders deny vehemently that their tribes possess Negro blood, it is true . . . that there is no Indian group in Virginia today which does not have some Negro strains." LAURENCE FOSTER, NEGRO-INDIAN RELATIONSHIPS IN THE SOUTHEAST 16 (1935).
296. Cook, supra note 232, at 98.
297. Id. at 97
298. See id.
299. Laura L. Lovett, "African and Cherokee by Choice": Race and Resistance Under Legalized Segregation, 22 AM. INDIAN Q. 203, 222 (1998).
300. See id. at 220.
301. See id.
302. McMullen, supra note 208, at 265.
303. Id.
304. See FOSTER, supra note 256, at 17.
305. See id.
306. See id.
307. Id.
308. Id. at 18.
309. McMullen, supra note 208, at 268 (citation omitted).
310. See Sturm, supra note 210, at 247. Mildred Loving is one of thousands of people with both African and Indian ancestry whose Indian identity is not legally recognized.
311. See generally Maillard, supra note 15, at 4 (arguing that Loving created a false collective memory that mixed-race people and relationships did not previously exist).
312. See Pratt, supra note 20, at 98-100.
313. See Treaty with the Cherokee Indians, supra note 196; Treaty with the Choctaws and Chickasaws, U.S.-Chocktaw & Chickasaw Indians, Apr. 28, 1866, 14 Stat. 769; Treaty with the Seminole Indians, U.S.-Seminole Nation, Mar. 21, 1866, 14 Stat. 755; Treaty with the Creeks, July 19, 1866, 14 Stat. 785.
314. Pratt, supra note 20, at 100.
315. The Dawes Roll is available online through the Archival Research Catalog. See Archival Research Catalog, http://www/archives.gov/research/arc/ (last visited 8/1/07).
316. Pratt, supra note 20, at 102.
317. Id.
318. Id.
319. See, e.g., Freedman Roll, http://arcweb.archives.gov/arc/ digital_detail.jsp?&pg=235&rn=1&tn=300307&st=b&rp= details&nh=2&si=0 (last visited 8/1/07).
320. Pratt, supra note 20, at 102. There was a limited exception to this general rule: since most of the tribes had a matriarchal society, a child generally took the status of the mother. Id. at 100 n.281. Accordingly, if the mother of the black Indian was Indian, that black Indian could have been regarded as a "blood" member of the tribe for purposes of enrollment. Id. at 101 n.287. Maternal Indian ancestry, however, did not always guarantee placement on the blood roll. See Sango v. Willig, 249 P. 903 (1926) (holding that the Dawes Commission's placement of a black Indian - whose mother was Indian - on the freedman roll was final). It was rare for a black Indian to have an Indian mother because most mixed-race people of African descent during slavery had a mother of African descent and an Indian slavemaster as father. Pratt, supra note 20, at 101 n.287. This historical reality meant that the overwhelming majority of black Indians were placed on the Freedmen Roll. Id.; see also Miller v. Allen, 229 P. 152 (Okla. 1924) (denying the request of a female plaintiff who was three-quarters Indian and one-quarter African to be moved to the blood roll).
321. See Tiger v. Fewell, 22 F.2d 786, 787 (1927) (stating that the purpose of the segregated freedman roll was to have freedmen regarded as non-Indians); Rowe v. Sartain, 230 P. 919 (1924) (reasoning that, since freedmen were enrolled separately, they had no Indian blood). Plaintiff Rowe sought to set aside a conveyance of her allotted land under a statute that restricted the alienability of lands allotted to persons of Indian blood. Rowe was enrolled as a Creek freedman even though she had seven-eighths Indian blood. She therefore claimed that she should fall under the statute at issue. The court held that, as a freedman, her allotment was alienable despite her Indian blood. See also Goat v. United States, 224 U.S. 458, 468-69 (1912)
322. When I visited the Choctaw Nation's headquarters in Durant, Oklahoma while conducting research, a woman who appeared racially white, but identified herself as part Choctaw Indian, was kind enough to speak briefly with me about the Choctaw freedmen. When I inquired about whether the tribe had any mechanism for a freedmen descendant to show "Indian blood," the woman abruptly and erroneously informed me that the freedmen did not have Indian blood and that they were "just slaves."
323. For example, the current Constitution of the Choctaw Nation defines "Membership" as all "Choctaw Indians by blood whose names appear on the final rolls of the Choctaw Nation . . . and their lineal descendants." CONST. OF THE CHOCTAW NATION art. II, § 1. Likewise, the Constitution of the Chickasaw Nation defines citizenship as "all Chickasaw Indians by blood whose names appear on the final rolls of the Chickasaw Nation . . . and their lineal descendants." CONST. OF THE CHICKASAW NATION art. II, § 1. The Cherokee Constitution provides that "[a]ll citizens of the Cherokee Nation must be original enrollees or descendants of original enrollees listed on the Daws Commission Rolls . . . ." CONST. OF THE CHEROKEE NATION art. IV, § 1. The Constitution of the Creek Nation provides that "[p]ersons eligible for citizenship in the Muscogee (Creek) Nation shall consist of Muscogee (Creek) Indians by blood whose names appear on the final rolls . . . and persons who are lineal descendants of those Muscogee (Creek) Indians by blood whose names appear on the final rolls . . . ." CONST. OF THE MUSCOGEE (CREEK) NATION art. III, § 2. The Creek Constitution creates two types of citizenship: regular citizenship and full citizenship. Regular citizens are entitled to all the rights as members of the tribe except the right to hold office. Full citizenship and, accordingly, the right to hold office in the tribe is granted to those persons of one-quarter or more Indian blood. See id. art. III, § 4.
324. As Professor Joyce McCray Pearson has noted, Jon Velie, the lawyer representing the Freedmen descendants, "believes that numerous Freedmen have genetic Indian ancestry but they just cannot document it." McCray Pearson, supra note 21, at 629.
325. For example, Seminole freedmen descendants, who were citizens of the Seminole Nation, sued the Seminole Nation in an effort to secure the right to tribal benefits, including access to programs funded by judgment-fund monies paid to the tribe by the federal government for tribal lands taken in the past. See Davis v. U.S., 343 F.3d 1282 (10th Cir. 2003). See generally McCray Pearson, supra note 21. Creek freedmen descendants have also sued their tribe, the Creek or "Muscogee" Nation. Graham v. Muscogee (Creek) Nation Citizenship Bd., CV 2003-53 (Muscogee (Creek) Nation Okmulgee Dist. Ct. 2006), appeal filed SC 2006-03, available at http://www.freedmen5tribes.com/Citizenship_Order.pdf; Johnson v. Muscogee (Creek) Nation Citizenship Bd., CV 2003-54 (Muscogee (Creek) Nation Okmulgee Dist. Ct. 2006), appeal filed SC 2006-03, available at http://www.freedman5tribes.com/Citizenship_Order.pdf. In that suit, the black freedmen descendants sought to prove that they had Indian ancestry by introducing evidence of a non-Dawes Creek tribal roll. Id. Respondents/Cross Appellants' Brief filed with the Muscogee Creek Nation Supreme Court, June 21, 2006 at 7-8. The Muscogee (Creek) Nation District Court held that the freedmen descendants, Ron Graham and Fred Johnson, were entitled to a determination of tribal membership based on the law in existence at the time that they first applied for tribal membership. Id. That law would allow Graham and Johnson to use tribal rolls in addition to the Dawes rolls to establish Creek Indian blood. Id. The Creek Citizenship Board, which is the administrative body charged with handling tribal membership determinations, has appealed the decision. Id. at 2. In another case, Cherokee freedmen descendants claimed that a Cherokee statute which limited tribal membership to "Cherokees by blood" was unconstitutional under the 1975 Cherokee constitution. Allen v. Cherokee Nation Tribal Council, JAT 04-09 (Cherokee Nation Jud. App. Trib. 2006), available at http://www.cherokeecourts.Org/ Portals/5/JAT-04-09%2054-Opinion%203-7-06.pdf. In a landmark decision, the Cherokee Supreme Court held that, pursuant to the 1866 treaty between the Cherokee Nation and the U.S. government and the 1975 Cherokee Constitution, the Cherokee statute limiting citizenship to "Cherokees by blood" was unconstitutional. Id. Accordingly, the Court found that the freedmen descendants are citizens of the Cherokee Nation. Id. The Court was careful to note in its opinion that this did not make the freedmen descendants racially Indian. See id. The Cherokee freedmen and their descendants have been litigating their rights since the beginning of the twentieth century. See, e.g., Ligon v. Johnston, 164 F. 670 (1908) (holding that the determination of which roll a person should be enrolled on was an administrative decision and not for the court).
326. See, e.g., Allen v. Cherokee Nation Tribal Council, JAT 04-09 (Cherokee Nation Jud. App. Trib. 2006), available at http://www. cherokeecourts.org/Portals/5/JAT-04-09%2054-Opinion%203-7-06.pdf
327. Pratt, supra note 20, at 103-04.
328. See Kelly Kurt, Oklahoma Gambles Big, WASH. TIMES, Feb. 15, 2005.
329. Richard Delgado, When a Story Is Just a Story: Does Voice Really Matter?, 76 VA. L. REV. 95, 104-05 (1990) (contrasting procedural racism with substantive racism).
330. See id. at 105.
331. It is important to note that the Cherokee Nation's Supreme Court recently rejected the Nation's assertion of sovereign immunity as a barrier to the freedmen's claims. See supra note 286 (regarding the Cherokee nation).
332. Sturm, supra note 210, at 249.
333. See id. at 246.
334. This term is generally used to refer to someone who is not "authentically" Indian. See Christine Metteer, The Trust Doctrine, Sovereignty, And Membership: Determining Who Is Indian, 5 RUTGERS RACE & L. REV. 53, 87-88 (2003).
335. See Sturm, supra note 210, at 249. Professor Rachel Moran argues that we impose pressure on multiracial individuals to choose one component of their identity over another, and that we expect them to comply so that we can understand which side of the ongoing political race war they are on,
336. 417 U.S. 535, 554 (1974). In Mancari, non-Indian federal employees challenged the Bureau of Indian Affairs's Indian-hiring preference, which had been statutorily imposed by the Indian Reorganization Act. Id. The plaintiffs alleged that the preference violated the Equal Opportunity Act of 1972 and therefore constituted unlawful racial discrimination. See id. The Court held that this did not constitute racial discrimination because it is not race based, but rather "an employment criterion reasonably designed to further the cause of Indian self-government." Id. at 554.
337. See Mancari, 417 U.S. 535
338. The Cherokee have been struggling with these competing notions of Cherokee identity. Despite the ruling by the Cherokee Supreme Court in Allen, the Cherokees voted to amend the Nation's constitution in a manner that expelled the freedmen descendants as citizens of the Cherokee Nation. Donna Hales, Cherokees Vote Out Freedmen, MUSKOGEE PHOENIX (March 4, 2007). The Cherokee freedman descendants are challenging the tribes' vote in federal court and through lobbying congress. Upon facing a potential loss of federal funding, the Cherokee Nation stayed the expulsion of the Cherokee freedman, pending resolution of the matter.
339. House Votes To Cut Cherokee Funding, MSNBC.COM, Sept. 7, 2007, http://www.msnbc.msn.com/id/20638110.