Red: Racism and the american indian

UCLA Law Review

Volumn 56, Issue 3, 2009, Pages 591-656

  Berger, Bethany R ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 65349134663     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (485)

1. S.E. Ruckman, Cherokee Freedmen: Tribe Reinstates Citizenship Until Appeals Finished, TULSA WORLD, May 15,2007, at AO.
2. See Plains Commerce Bank v. Long Family Land & Cattle Co., 128 S. Ct. 2709 (2008) (holding that a tribal court lacked jurisdiction over a discrimination claim brought by a tribal member corporation against a non-Indian bank),
3. OFFICE OF MOMT. &. BUDGET, EXECUTIVE OFFICE OF THE PRESIDENT, STATEMENT OF ADMINISTRATION POLICY: H.R. 505, NATIVE HAWAIIAN GOVERNMENT R EORGANIZATION ACT OF 2007 (2007) [hereinafter H.R. 505 POLICY STATEMENT].
4. See Morton v. Mancari, 417 U.S. 535 (1974) (holding that federal measures classifying Indians would be upheld so long as they were tied rationally to the federal government's unique obligations to Indian people).
5. See Adrienne D. Davis, Identity Notes Part One: Playing in the Light, 45 AM. U. L. REV. 695, 703-04 (1996); Juan F. Perea, The BlacWVWute Binary Paradigm of Race: The "Normal Science" of American Racial Thought, 85 CAL. L. REV. 1213,1248 (1997).
6. The Article focuses less on race, the simple classification of people based on real or imagined differences in ancestry or appearance, see IAN f. HANEY-LOPEZ, WHITE BY LAW: the legal construction OF race 14 (Richard Delgado AND Jean Stefancic eds., N.Y. Univ. Press 1996) [hereinafter HANEY-LOPEZ, white by law], than on racism, the phenomena by which the assigned race comes to signify innate, natural, or permanent differences between individuals and groups. These differences are in turn used to justify advantage or privilege. SEE ALBERT MEMMI, RACISM 100 (Steve Martinot trans., Univ. of Minn. Press 2000) (1982). The focus on racism rather than race makes it easier to incorporate the ways culture, nationality, and religion have all been linked to privileges attached to notions of innate or biological differences. It also avoids the difficulties of policies that focus on eradication of race-conscious laws to the detriment of efforts to eradicate racist structures of privilege and power. See, e.g., Charles R. Lawrence III, The Id, the Ego and Equal Protection: Reckoning With Unconscious Racism, 39 STAN. L. REV. 317,321 (1987).
7. See DAVID R. ROEDIGER, WORKING TOWARD WHITENESS: HOW AMERICA'S IMMIGRANTS BECAME WHITE (BASIC BOOKS 2005);
8. Ian f. Haney-Lopez, Race, Ethnicity, Erasure: The Salience of Race to LatCrit Theory, 85 CAL. L REV. 1143,1148 (1997).
9. See HANEY-LOPEZ, white by law, supra note 6, at 14-15; MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES FROM THE 1960S to the 1990S 61 (Routledge 1994) (1986).
10. The late Vine Deloria noted this difference in the social meaning of race for American Indians as early as 1969, writing that while whites defined both blacks and Indians as animals, blacks were "draft animals" and Indians were "wild animals." VINE DELORIA, JR., CUSTER DIED FOR YOUR SINS: AN INDIAN MANIFESTO 171 (Univ. of Okla. Press 1988) (1970). As a result, laws "systematically excluded blacks from all programs, policies, social events, and economic schemes," while Indians were "subjected to the most intense pressure to become white ....The antelope had to become a white man." Id. at 172.
11. See infra Part II.B.
12. See, e.g., O.K. Armstrong, Set the American Indians Free'., READER'S DIGEST, July 1945, at 47, 49 (recounting an example of a North Carolina election registrar charged with administering the literacy qualification telling a Cherokee man with a master's degree, "You couldn't read or write to my satisfaction if you stayed here all day").
13. See, e.g., State v. Duffy, 7 Nev. 342 (1872) (invalidating a 1867 law providing that "Negroes, Mongolians and Indians shall not be admitted into the public schools, but the board of trustees may establish a separate school for their education"); King v. Gallagher, 93 N.Y. 438 (1883) (discussing a New York law mandating the segregation of Indian children); PAULI mURRAY, STATES' LAWS oN RACE AND COLOR 53, 237 (Pauli Murray ed., The Univ. of Ga. Press 1997) (1951) (reprinting California and Mississippi laws on the segregation of Indians); id. at 18 (noting that by 1950, marriage between Indians and whites were barred in five states); GILBERT THOMAS STEPHENSON, RACE DISTINCTIONS IN AMERICAN LAW 81-83 (1910) (reporting that as of 1910, marriage between Indians and whites was barred in eight states, although black-white marriages were barred in twenty-six states).
14. PRESIDENT'S COMM. ON CIVIL RIGHTS, TO SECURE THESE RIGHTS: THE REPORT OF THE PRESIDENT'S COMMITTEE ON CIVIL RIGHTS 78-79 (1947) [hereinafter TOSECURE THESE RIGHTS].
15. Id.
16. Id. at 55.
17. See Sarah Deer, Sovereignty of ike Soul: Exploring the Intersection of Rape Law Reform and Federal Indian Law, 38 SUFFOLK U. L. REV. 455, 456-58 (2005) (discussing the high rate of interracial rape of native women as part of the 500-year history of sexual exploitation).
18. See Wenona T. Singel & Matthew L.M. Fletcher, Power, Authority, and Tribal Property, 41 TULSA L. REV. 21,26-27 (2005) (describing the burning out of the Odawa and Ojibwa town of Cheboygan).
19. See Lac du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty Abuse Wis., Inc., 843 F. Supp. 1284,1288 (W.D. Wis. 1994).
20. BRIDGES Student Org., Univ. of N.D. (March 2001), http://www.urd.nodak. edWorg/bridges/imagesioster2.jpg.
21. See, e.g., TO SECURE THESE RIGHTS, supra note 13, 78-79 (noting that Indians faced the greatest difficulty accessing eating establishments and hotel accommodations in areas surrounding reservations);
22. see oho THOMAS BLOLSI, DEADLIEST ENEMIES: LAW AND THE MAKING OF RACE RELATIONS ON AND OFF ROSEBUD RESERVATION 2 (2001) (discussing racial antagonism between Indians and whites in South Dakota); Kevin K. Washburn, American Indians, Crime, and the Law, 104 MLCH. L. REV. 709, 764 (2006) ("Racism and bias remain strong, particularly in states where Indians compete with non-Indians for limited resources.").
23. U.S. COMM'N ON CIVIL RIGHTS, A QUIET CRISIS: FEDERAL FUNDING AND UNMET NEEDS RN INDIAN COUNTRY 8,34-35,42,67-69,83-84 (2003);
24. OHEN'S HANDBOOK OF FEDERAL INDIAN LAW 730,1358,1378-79 (Neil Jessup Newton ed., 2005) [hereinafter 2005 cohen].
25. See Indians Tell Their Story; A Pathetic Recital of the Killing of Women and Children, N.Y. TIMES, Feb. 12,1891, at 6.
26. See Judith V. Royster, The Legacy of Allotment, 27 ARIZ. ST. L.J. 1, 8 (1995).
27. AMERICANIZING THE AMERICAN INDIANS: WRITINGS BY THE "FRIENDS OF THE INDIAN" 1880-1900, at 261 (Francis Paul Prucha ed., Harvard Univ. Press 1973) [hereinafter AMERICANIZING THE AMERICAN INDIANS].
28. 3 THEODORE ROOSEVELT, THE WINNING OF THE WEST 45-46 (Univ. of Neb. Press 1995) (1894).
29. See infra Part II.B.
30. See id.
31. See id.
32. See, e.g., PHILIP J. DELORIA, INDIANS TN UNEXPECTED PLACES 85 (2004) [hereinafter DELORIA, UNEXPECTED PLACES];
33. PHILIP J. DELORIA, PLAYING INDIAN (1998) [hereinafter DELORIA, PLAYING INDIAN];
34. JOANE NAGEL, AMERICAN INDIAN ETHNIC RENEWAL: RED POWER AND THE RESURGENCE OF IDENTITY AND CULTURE (Oxford Univ. Press 1997) (1996);
35. THEDA PERDUE, "MIXED BLOOD" Indians: RACIAL CONSTRUCTION IN THE EARLY SOUTH (2003);
36. IRCE STURM, BLOOD POLITICS: RACE, CULTURE AND IDENTITY IN THE CHEROKEE NATION OF OKLAHOMA (2002);
37. Gavin Clarkson, Tribal Bonds: Statutory Shackles and Regulatory Restraints on Tribal Economic Development, 85 N.C. L REV. 1009 (2007);
38. Renee Ann Cramer, The Common Sense of Anti-Indian Racism: Reacticms to Mashantucket Pequot Success in Gaming and Acknowledgment, 31 LAW & SOC. INQUIRY 313 (2006);
39. Rebecca Tsosie, The New Challenge to Native Identity: An Essay on "Indigeneity" and "Whiteness," 18 WASH. U. J.L. & pOL'Y 55 (2005); Gloria Valencia-Weber, Racial Equality: Old and New Strains and American Indians, 80 NOTRE DAME L. REV. 333 (2004).
40. See WARD CHURCHILL, STRUGGLE FOR THE LAND: NATIVE NORTH AMERICAN RESISTANCE to GENOCIDE, ECOCIDE AND COLONIZATION 380 (2002) (although native peoples were devoid of racism, "Euroamerican settlers ... foisted off the notion that Indian identity should be determined primarily by 'blood quantum,' an outright eugenics code similar to those developed in places like nazi Germany and apartheid South Africa"). For a more nuanced and accurate description of the uses of blood quantum, see Paul Spruhan, A Legal History of Blood Quantum in Federal Indian Law to 1935, 51 S.D. L. REV. 1 (2006).
41. See generally ROBERT A. WLLLIAMS, JR., LIKE A LOADED WEAPON: THE REHNQUIST COURT, INDIAN RIGHTS, AND THE LEGAL HISTORY OF RACISM IN AMERICA (2005) [hereinafter WILLIAMS, LIKE A LOADED WEAPON]; ROBERT A. WILLIAMS, JR., THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSES OF CONQUEST (1990) [hereinafter WILLIAMS, WESTERN LEGAL THOUGHT].
42. WILLIAMS, WESTERN LEGAL THOUGHT, supra note 31, at 35.
43. DEBORAH A. ROSEN, AMERICAN INDIANS AND STATE LAW: SOVEREIGNTY, RACE, AND CITIZENSHIP, 1790-1880, at 110-11 (2007). Even the identification of nine states out of thirty-eight that did prohibit intermarriage, see id., depends on including states that prohibited intermarriage only very briefly, such as Tennessee, which enacted the prohibition in 1821 (by adopting a North Carolina law) but repealed the prohibition the following year. See DAVID FOWLER, NORTHERN ATTITUDES TOWARDS INTERRACIAL MARRIAGE: LEGISLATION AND PUBLIC OPINION IN THE MIDDLE ATLANTIC AND THE STATES OF THE OLD NORTHWEST, 1780-1930, at 422 (1987).
44. See ALDEN T. VAUGHAN, THE ROOTS OF AMERICAN RACISM: ESSAYS ON THE COLONIAL EXPERIENCES (1995).
45. WILLIAM G. MCLOUGHLIN, CHEROKEE RENASCENCE IN THE NEW REPUBLIC, at xv-xvi(1986).
46. Reginald Horsman, Scientific Racism and the American Indian in the Mid-Nineteenth Century, 27 AM. Q. 152,166-68 (1975).
47. Indian groups designated as "mulattoes," like the Lumbee of North Carolina or the "Moors" of Delaware, experienced far more segregation than others. See murray, supra note 12, at 71, 330 (reprinting a Delaware law providing separate schools for the "children of people called Moors or Indians," and a North Carolina law providing that "no child with negro blood, or what is generally known as Croatan Indian blood, in his veins, shall attend a school for the white race, and no such child shall be considered a white child"). Interestingly, California, whose Indian relations were forged from the brutality of the gold rush, the Spanish history of indentured servitude, and the failure to ratify any of the numerous treaties made with its tribes, placed racial restrictions on Indian integration that mirrored those placed on African Americans. See Lee v. Giraudo (In re Monks' Estate), 120 P.2d 167, 172 (Cal. 1941) (quoting a law prohibiting black-white intermarriage); People v. Washington, 36 Cal. 658,666 (1869) (invalidating a law barring Indian, Mongolian, or Chinese testimony against whites); murray, supra note 12, at 53 (reprinting a California law providing that Indian children may not attend white schools).
48. See infra Part II.B.
49. See text accompanying infra notes 325-335. During the Termination Era, the federal government sought to end the special status of Indian tribes, ending the federal relationship with a number of tribes, and placing many more under state jurisdiction.
50. 438 U.S. 265 (1978).
51. 41.Id. (plurality opinion) (invalidating an affirmative action plan reserving medical school slots for minority candidates).
52. 435 US. 191 (1978).
53. See text accompanying infra notes 364-370.
54. This Article differs, therefore, from the positions of Robert A. Williams and others who see federal Indian law as solely informed by racism and notions of Indian inferiority. See, e.g., WILLIAMS, LIKE A LOADED WEAPON, supra note 31.
55. See, e.g., 2005 COHEN, supra note 21, at 16 (describing the way that the need to trade with Indians and to avoid warfare influenced Indian land policy).
56. See generally Devon W. Carbado, Race to die Bottom, 49 UCLA L REV. 1283 (2002) (discussing the difficulties with the effort to posit a bottom of comparative hardship in race scholarship).
57. Understanding racism against one group, however, does illuminate the roots of racism against others. See Mari Matsuda, Planet Asian America, 8 ASIAN L.J. 169, 170-71 (2001) (arguing that the practice and ideology of racism toward African Americans shaped treatment that Asians experienced upon arriving in America).
58. Cf. Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1709,1715 (1993) ("Although the systems of oppression of Blacks and Native Americans differed in form-the former involving the seizure and appropriation of labor, the latter entailing the seizure and appropriation of land-undergirding both was a racialized conception of property implemented by force and ratified bylaw.").
59. See ROBIN BLACKBURN, THE MAKING OF NEW WORLD SLAVERY: FROM THE BAROQUE TO THE MODERN 1492-1800, at 13-15 (1997); IVAN HANNAFORD, RACE: THE HISTORY OF AN IDEA IN THE WEST 5-6 (1996); OMIAND WINANT, supra note 8, at 61-63. In the ancient world, for example, "ethnos" signified those governed by passion rather than law; the acceptance of a government of law, regardless of what we today know as ethnicity, made the former "ethnos" into "politikos." See HANNAFORD, supra, at 21-22. In ancient Greece and Rome, the dark-skinned Ethiopians were described with admiration and respect, while the blue-eyed Scythians were considered among the lowest peoples. Id. at 26. Even in the Middle Ages, Noah's curse condemning the descendants of his son Ham to servitude was not associated with Africa or dark skin; the descendants of Ham were often described as settling in Europe or Asia, and the curse of perpetual servitude was more frequently invoked to justify oppression and control of the poor. Benjamin Braude, The Sons of Noah and the Construction of Ethnic and Geographical Identities in the Medieval and Early Modern Periods, 54 WM. AND MARY Q. 103,113,116,120-22,133 (1997).
60. WILLIAMS, WESTERN LEGAL THOUGHT, supra note 31, at 35-50.
61. HANNAFORD, supra note 49, at 116-20.
62. Id. at 119-22.
63. See BLACKBURN, supra note 49, at 4; HANNAFORD, supra note 49, at 188-90.
64. BLACKBURN, supra note 49, at 17.
65. HANNAFORD, supra note 49, at 63,204;
66. WINTHROP d. JORDAN, WHITE OVER BLACK: AMERICAN ATTITUDES TOWARD the NEGRO, 1550-1812, at xii (w.w. Norton & Co. 1977) (1968);
67. OMI & WINANT, supra note 8, at 63.
68. JORDAN, supra note 55, at xii-xiii.
69. See BLACKBURN, supra note 49, at 13-15.
70. Id. at 38-39.
71. Edmunds. Morgan.American Slavery, American Freedom: The Ordeal Of Colonial Virginia 386-87 (W.W. Norton & Co. 2003) (1975);
72. cf. JORDAN, supra note 55, at 49 (placing the emergence of "preening consciousness of the peculiar glories of English liberties" in the 1550s).
73. See BLACKBURN, supra note 49, at 17.
74. See Alice Carter Cook, The Aborigines of the Canary Islands, 2 AM. ANTHROPOLOGIST 451,456,458 (1900) (reporting accounts of Guanches as "blond" or "swarthy" and "white").
75. BLACKBURN, supra note 49, at 62.
76. BULL ROMANUS PONTIFEX (1455), reprinted in EUROPEAN TREATIES BEARING ON THE HISTORY of the UNITED STATES AND ITS DEPENDENCIES tO 1648, at 23 (Frances Gardiner Davenport ed., 1917) [hereinafter EUROPEAN TREATIES].
77. See THE BULL INTER CAETERA (1493), reprinted in european treaties, supra note 63, at 76 (granting Isabella and Ferdinand authority to "bring under your sway [the Americas] and islands with their residents and inhabitants and to bring them to the Catholic faith").
78. bLACKBURN, supra note 49, at 129, 133; LEWIS HANKE, THE SPANISH STRUGGLE FOR JUSTICE IN THE CONQUEST OF AMERICA 19-20 (1949).
79. HANKE, supra note 65, at 43-44.
80. BLACKBURN, supra note 49, at 134.
81. See id. at 144-46;
82. see also id. at 143 (stating that African slaves were often employed as overseers of Indians and given more prestigious work).
83. See PATRICIA SEED, AMERICAN PENTIMENTO: THE INVENTION OF INDIANS AND THE PURSUIT OF RICHES 1-2 (2001) (noting that although the primary struggle of North American indigenous peoples is for land, the basis of national equality, the primary struggle of South American Indians is for dignity, the hallmark of individual equality).
84. MORGAN, supra note 59, at 6-8.
85. Id. at 12-14.
86. See, e.g., THE FIRST CHARTER OF VIRGINIA (1606), in 7 the federal and state CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS OF THE STATES, TERRITORIES, AND COLONIES NOW OR HERETOFORE FORMING THE UNITED STATES oF AMERICA 3783 (Francis Newton ed, 1909);
87. Instructions to the Resident Governor (Feb. 16, 1629), in 17 EARLY AMERICAN INDIAN DOCUMENTS, TREATIES AND LAWS, 1607-1789, at 74 (ALDEN T. VAUGHAN & DEBORAH A. ROSEN eds., 2003) (hereinafter EARLY indian DOCUMENTS] (declaring that "endeavoring[ ] to bring[ ] the Indians to the knowledge of the gospel[ ]" is the "main end of our plantation").
88. See Letter From John Winthrop to John Endecott (Jan. 3, 1634), in 3 WLNTHROP PAPERS, 1631-1637, at 149 (Allyn Bailey Forbes ed., 1943);
89. Letter From John Winthrop to Sir Simonds D'ewes (July 21,1634), in 3 winthrop papers, 1631-1637, supra, at 171-72.
90. Law to Order a Day of Humiliation (Oct. 25,1676), 17 EARLY INDIAN DOCUMENTS, supra note 72, at 136.
91. Cf. JILL LEPORE, THE NAME OF WAR: KING PHILIP'S WAR AND THE ORIGINS OF AMERICAN iDENTITY, at xiii (1998) (arguing that the 1675 war between the English and the Indians "drew new, firmer boundaries between English and Indian people... and between what it meant to be 'English' and what it meant to be 'Indian'").
92. See 2005 COHEN, supra note 21, at 17.
93. Christopher Brooke, A Poem on the Late Massacre in Virginia, With Particular Mention of Those Men of Note That Suffered in That Disaster, quoted in ROBERT F. BERKHOFER, JR., THE WHITE MAN'S INDIAN: IMAGES OFTHE AMERICAN INDIAN FROM COLUMBUS TO THE PRESENT 20 (1979).
94. Law (United Colonies) to Wage War Against "Barbarous Natives", reprinted m 17 EARLY INDIAN DOCUMENTS, supra note 72, at 124.
95. Id. at 61.
96. Law to Reward the Killing of St. Johns or Cape Sable Indians, reprinted in 17 EARLY INDIAN DOCUMENTS, supra note 72, at 192.
97. Karen Ordahl Kupperman, Presentment of Civility: English Reading of American Self-Presenuuion in the Early Years of Colonization, 54 WM. AND MARY Q. 193, 198 (1997).
98. See DELORIA, PLAYING INDIAN, supra note 29, at 20-21.
99. JAMES MULDOON, IDENTITY ON THE MEDIEVAL IRISH FRONTIER: DEGENERATE ENGLISHMEN, WILD IRISHMEN, MIDDLE NATIONS 63 (2003).
100. see JUNE nAMIAS, WHITE CAPTIVES: GENDER AND ETHNICITY on THE WESTERN FRONTIER 9 (1993).
101. See sEED, supra note 69, at 16-17 (1995).
102. See EUROPEAN TREATIES, supra note 63, at 247 n.4, 248 (noting Winthrop's 1629 justification from England).
103. Indeed, much early colonial Indian legislation, and possibly one of the causes of the 1675 war with the Wampanoag, concerned the problem of English cattle trampling Indian com fields. See Law to Improve Relations With Indians, reprinted in 15 ARLY INDIAN DOCUMENTS, supra note 72, at 62-63;
104. Law to Compensate Indians for Damage to Corn, reprinted m 17 EARLY INDIAN DOCUMENTS, supra note 72, at 20; Law to Create a Pound for Horses and Cattle, reprinted in 17 EARLY INDIAN DOCUMENTS, supra note 72, at 21;
105. Law to Require Indians to Build Fences, reprinted in 17 EARLY INDIAN DOCUMENTS, supra note 72, at 23; Law to Compensate Indians for Damage to Corn, reprinted in 17 EARLY INDIAN DOCUMENTS, supra note 72, at 23; Laws Concerning Indians in the Code of 1660, reprinted m 17 EARLY INDIAN DOCUMENTS, supra note 72, at 112-13.
106. The very first records of the new Connecticut colony, for example, concerned punishment for a man who illegally traded a gun to the local Indians for corn. See 1 THE pUBLIC RECORDS OF THE COLONY OF CONNECTICUT PRIOR TO THE UNION WITH NEW HAVEN COLONY 1 (J. Hammond Trumbull ed., AMS Press 6k Johnson Reprint Corp. 1968) (1850) [hereinafter colonial records of connecticut] (reprinting law of Feb. 9, 1637). The new settlements repeatedly curtailed the corn trade, only to be forced to reopen it to satisfy the colonists' hunger. See id. at 11, 13, 17-18 (detailing the Connecticut restrictions as well as the lifting of these restrictions); Laws to Prevent Attack by Indians, reprinted in 15 EARLY INDIAN DOCUMENTS, supra note 72, at 19; Law to Curtail Purchases of Corn, reprinted in 15 EARLY INDIAN DOCUMENTS, supra note 72, at 24; Law to Allow Trade for Com, reprinted in 15 EARLY INDIAN DOCUMENTS, supra note 72, at 32 (documenting the Virginia restrictions and the lifting of these restrictions).
107. See JOHN LOCKE, TWO TREATISES OF GOVERNMENT, 286-87, 296-97 (Peter Laslett ed., Cambridge Univ. Press 1988) (1690). Stuart Banner has shown that Locke was familiar with Indian farming from his service as an administrator of the Carolina colony and later secretary to the British Board of Trade. STUART BANNER, HOW THE INDIANS LOST THEIR LAND 46-47 (2005) (suggesting that ideas of English identity were more important than Indian reality in such constructions of difference).
108. EMMERICH DE VATTEL, THE LAW OF NATIONS 103-04 (Joseph Chitty ed. & trans., T. & J.W. Johnson & Co. 1867) (1758).
109. See BANNER, supra note 89, at 153.
110. Id.
111. 2005 COHEN, supra note 21, at 17.
112. Laws to Govern Indians, reprinted m 17 EARLY INDIAN DOCUMENTS, supra note 72, at 56,59 (reprinting a 1685 Plymouth law); see COLONIAL RECORDS OF CONNECTICUT, supra note 88, at 95 (law of Oct. 12,1643).
113. See, e.g., Law to Protect Indian Servants, reprmtea in 17 EARLY INDIAN DOCUMENTS, supra note 72, at 165 (justifying a law prohibiting sales on credit by complaints of "some of the principal and best disposed Indians within this province have represented and complained of the exactions and oppression which some of the English exercise towards the Indians, by drawing them to consent to, covenant or bind themselves or children apprentices or servants for an unreasonable term on pretence of, or to make satisfaction for some small debt contracted, or damage done by them").
114. See, e.g., Laws Divine, Morall, and Mafliall, Etc, reprinted m 15 EARLY INDIAN DOCUMENTS, supra note 72, at 14,15 (reprinting a 1612 law punishing with death those who ran away to Indians); colonial records of connecticut, supra note 88, at 78 (reprinting a 1642 law providing at least three years punishment, and additional fines or corporal punishment at the court's discretion, for those that left to settle with the Indians).
115. KAREN KUPPERMAN, THE JAMESTOWN PROJECT 99-100 (2007).
116. Instructions to the Resident Governor, reprinted in 17 EARLY INDIAN DOCUMENTS, supra note 72, at 74 (reprinting Massachusetts 1629 instructions);
117. see also Law to Promote Conversion of Indians to Christianity, reprinted in 15 EARLY INDIAN DOCUMENTS, supra note 72, at 16 (reprinting a Virginia 1619 law).
118. RALPH HAMOR, A TRUE DISCOURSE OF THE PRESENT STATE OF VIRGINIA (Va. State Library Publ'ns 1957) (1615).
119. Id. at 24.
120. Id. at 37, 40-42. Powhatan refused, calling it "not a brotherly part of your King, to desire to bereave me of two of my children at once." Id. at 42.
121. Law to Set Limits on Trade With Indians, reprinted in 15 EARLY INDIAN DOCUMENTS, supra note 72, at 16, 17 (reprinting a 1619 law to set limits on trade with Indians).
122. Virginia minister Alexander Whitaker, for example, wrote in 1613 that there is a civil government amongst them which they strictly observe... wherein they both honor and obey both Kings, Parents, and Governours, both greater and lesse, they observe the limits of their owne possessions and incroach not upon their neighbours dwellings. Murther is a capitall crime scarce heard among them: adultery is most severely punished, and so are other offences. ALEXANDER WHITAKER, GOOD NEWES FROM VIRGINIA 26-27 (1613), quoted in BERKHOFER, supra note 77, at 20.
123. 104- See Conference and Agreement Between Plymouth Colony and Massasoit, Wampanoag, Sachem, reprinted in 19 EARLY INDIAN DOCUMENTS, supra note 72, at 23,24-26 (describing the procedure resulting in the League of Peace between the Wampanoag and the Plymouth Colony); DANIEL K. RACHTER, Facing East From Indian Country: A Native History of Early America 129-49 (2001) (describing a 1679 treaty negotiation with the Iroquois);
124. Dorothy V. Jones, British Colonial Indian Treaties, m 4 HANDBOOK OF NORTH AMERICAN INDIANS 185, 185-190 (Wilcomb E Washburn ed., 1988) (summarizing the nature of treaty negotiations between Europeans and Indian Tribes).
125. Law (United Colonies) to Wage War Against "Barbarous Natives", reprinted in 17 eARLY INDIAN DOCUMENTS, supra note 72, at 124.
126. THOMAS HOBBES, LEVIATHAN 187 (C.B. Macpherson ed., Penguin Books 1986) (1651).
127. 107.Id.
128. Nancy Shoemaker, How Indians Got to Be Red, 102 AM. HIST. REV. 625,629 (1997). The earliest European observers also opined that Indians would be white if only they did not expose themselves to the sun. Kupperman, supra note 81, at 207.
129. See VAUGHAN, supra note 34, at 25.
130. Shoemaker, supra note 108, at 626.
131. HANNAFORD, supra note 49, at 204 (quoting CAROLUS LINNAEUS, SYSTEMA NATURAE (1735)).
132. See Shoemaker, supra note 108, at 626 (quoting LlNNEAUS, supra note 111).
133. Id. at 627-28.
134. Id. at 632.
135. Id.
136. Id. at 640-41.
137. Id. at 631.
138. See VAUGHAN, supra note 34, at 4.
139. See jordan, supra note 55, at 55-56, 67-68.
140. 2 William Waller Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia, From the First Session of the Legislature in the year 1619, at 260 (1823) (reprinting a 1667 law providing that those born enslaved would not be freed by baptism).
141. See Law to Regulate Servants and Slaves, reprinted in 15 EARLY INDIAN DOCUMENTS, supra note 72, at 114-22 (reprinting an Oct. 23, 1705 Virginia law regarding slavery and restrictions on free people of color);
142. Law to Regulate Slaves, reprinted in 16 EARLY INDIAN DOCUMENTS, supra note 72, at 120 (reprinting a 1696 South Carolina law establishing the presumption of slavery).
143. See Michael L. Fickes, "They Could Not Endure That Yoke": The Captivity of Pequot Women and Children After the War of 1637, 73 nEW ENG. Q. 58, 59-61 (2000);
144. JORDAN, supra note 55, at 68-69 (discussing the sale of Indians in exchange for Black slaves);
145. Law to Conduct Hostilities, reprinted in 17 EARLY INDIAN DOCUMENTS, supra note 72, at 43-44;
146. Law to Apportion Enemy Prisoners, reprinted in 17 EARLY INDIAN DOCUMENTS, supra note 72, at 47;
147. Order to Regulate Captive Indians, reprinted in 17 EARLY INDIAN DOCUMENTS, supra note 72, at 48-49;
148. Law to Further Regulate Captive Indians, reprinted in 17 EARLY INDIAN DOCUMENTS, supra note 72, at 49.
149. Law to Prevent "Bond Slaverie" in the Colony, reprinted in 17 EARLY INDIAN DOCUMENTS, supra note 72, at 86.
150. Law to Punish Commerce in Stolen Goods, reprinted in 17 EARLY INDIAN DOCUMENTS, supra note 72, at 154. Where southern laws typically listed "negroes" first in the list of races affecting slaves, the Massachusetts laws typically list Indians first, and a 1712 law refers solely to "Indians and other slaves." See, e.g., Law to Prohibit the Importation of Indians, reprinted m 17 EARLY INDIAN DOCUMENTS, supra note 72, at 178.
151. See, e.g., Law to Further Restrict Indian Access to Alcohol, reprinted in 17 EARLY INDIAN DOCUMENTS, supra note 72, at 109-10 (reprinting a 1657 law restricting alcohol sales).
152. Order to Exclude Indians From Participation in the Lottery, reprinted in 17 EARLY INDIAN DOCUMENTS, supra note 72, at 193; Resolve to Exclude Indians From Troops to Be Raised, reprinted in 17 EARLY INDIAN DOCUMENTS, supra note 72, at 212; Law to Prohibit Interracial Marriages, reprinted in 17 EARLY INDIAN DOCUMENTS, supra note 72, at 213. As Jack Forbes has painstakingly documented, moreover, during the colonial and early U.S. era, terms usually identified with Indian or black descent could be used for either Thus "mulatto" could indicate anyone of mixed racial heritage, including Indian and white, while "half- breed" could indicate white and black heritage, and "sambo," now signifying African American, meant black and Indian heritage. JACK D. FORBES, AFRICANS AND NATIVE AMERICANS: THE LANGUAGE OF RACE ANDTHE EVOLUTION OF RED-BLACK PEOPLES 162,234-38 (1993).
153. 127.Law to Exclude Indian Slaves and Servants From Militia, reprinted in 17 EARLY INDIAN DOCUMENTS, supra note 72, at 538.
154. Law to Encourage the Baptizing of Slaves, reprinted in 17 EARLY INDIAN DOCUMENTS, supra note 72, at 542 (internal citations omitted).
155. Law to Control Slaves and Freedmen, reprinted in 17 EARLY INDIAN DOCUMENTS, supra note 72, at 590-91 (reprinting a 1730 law regulating "Negro, Indian or Mulatto Slaves").
156. Law to Continue and Regulate Slavery for Mestizos and Others, reprinted m 17 EARLY INDIAN DOCUMENTS, supra note 72, at 642. Although in the shifting legal definitions of the time the categories of mulatto and mestizo might have included those of solely Indian and white parentage, the omission of Indian makes it more likely that both referred to those of at least partly African parentage, and that slavery was no longer an inheritable condition among Indians in New York.
157. Lawto Terminate Slavery, reprinted m 17 EARLY INDIAN dcxximents, supra note 72, at 476, 477.
158. Law to Enslave Certain Indians, reprinted in 15 EARLY INDIAN dOCUMENTS, supra note 72, at 73. It should be noted, however, that these times of servitude were far longer than the maximum imposed on servants from Christian countries. A 1658 tax law also suggested that while Indians were servants, Africans were presumed to be slaves. Law to Include Indian Servants Among Tithables, reprinted m 15 EARLY INDIAN DOCUMENTS, supra note 72, at 51. The law imposed a tax on "all negroes imported whether male or female, and Indian servants male or female however procured... such christians onelie to be excepted as are natives of this country [for example, English born in Virginia], or such as are imported free either by parents or otherwise" Id. (internal citation omitted).
159. Law to Suppress Rebellious Slaves, reprinted in 15 EARLY INDIAN DOCUMENTS, supra note 72, at 74.
160. Law to Define Slave Status, reprinted in 15 EARLY INDIAN DOCUMENTS, supra note 72, at 88.
161. See ALAN GALLAY, THE INDIAN SLAVE TRADE: THE RISE OFT HE ENGLISH EMPIRE INTHE AMERICAN SOUTH, 1670-1717, at 41,80 (2002).
162. See, e.g., id. at 41,49,56,127-28.
163. Law to Regulate Slaves, reprinted m 16 EARLY INDIAN DOCUMENTS, supra note 72, at 121.
164. Law to Regulate Slaves, reprinted in 16 EARLY INDIAN DOCUMENTS, supra note 72, at 297-98. Even this law, however, suggests that race was not quite the badge of slavery for Indians as it was for Africans: While Africans and mulattos claiming freedom had the burden of proof in claiming this status, Indians claiming freedom because they were in amity did not. See id. at 298.
165. See Law to Regulate Servants and Slaves, reprinted in 16 EARLY INDIAN DOCUMENTS, supra note 72, at 31.
166. Law to Regulate Slaves, reprinted m 16 EARLY INDIAN DOCUMENTS, supra note 72, at 381.
167. For example, see Law to Regulate Slaves and Proscribe Intermarriage, reprinted in 15 EARLY INDIAN DOCUMENTS, supra note 72, at 93,
168. Law to Regulate and Punish Slaves, reprinted m 15 EARLY INDIAN DOCUMENTS, supra note 72, at 148,153,
169. and Law to Establish Indians' Roles in Court, reprinted in 15 EARLY INDIAN DOCUMENTS, supra note 72, at 159, 160, reprinting Virginia laws regarding intermarriage, voting, and testimony.
170. For North Carolina laws regarding the same, see Law to Deny Suffrage to Indians, reprinted in 16 EARLY INDIAN DOCUMENTS, supra note 72, at 13,
171. Law to Prohibit Colonists From Marrying Indians, reprinted m 16 EARLY INDIAN DOCUMENTS, supra note 72, at 29,
172. and Law to Limit Indian's Roles in Court, reprinted in 16 EARLY INDIAN DOCUMENTS, supra note 72, at 45. For South Carolina laws regarding voting and testimony,
173. see Law to feermine Eligibility for Political Participation, reprinted m 16 EARLY INDIAN DOCUMENTS, supra note 72, at 201-02,
174. and Law to Regulate Slaves, reprinted in 16 EARLY INDIAN DOCUMENTS, supra note 72, at 297,301.
175. See, e.g., Law to Regulate Servants and Slaves, reprinted in 15 EARLY INDIAN DOCUMENTS, supra note 72, at 195-96 (reprinting a 1753 Virginia law reenacting a 1748 law regarding the regulation of slaves, but referring only to "negrof ] and mulatto[ ]" slaves);
176. Law to Further Modify Regulation of Slaves, reprinted m 16 EARLY INDIAN DOCUMENTS, supra note 72, at 324,326 (reprinting a 1751 South Carolina law regarding poisoning by slaves referring only to "every negro, mulatto, and mestizo").
177. See, e.g., Law to Reward Killing of Indians, reprinted in 15 EARLY INDIAN DOCUMENTS, supra note 72, at 199 (reprinting a 1755 Virginia law referring to "sculking" and "barbarous" natives);
178. Law to Reward the Killing of St. Johns or Cape Sable Indians, reprinted in 17 EARLY INDIAN DOCUMENTS, supra note 72, at 192 (reprinting a 1744 Massachusetts law providing one hundred pounds for Indian scalps);
179. Law to Reward the Capture or Scalping of Enemies, reprinted mil EARLY INDIAN DOCUMENTS, supra note 172, at 621 (reprinting a 1746 New York law referring to "Inhuman" Indian practices and providing rewards for Indian scalps).
180. See BLACKBURN, supra note 49, at 141.
181. jordan, supra note 55, at 69.
182. E.g., LAW to SUPPRESS REBELLIOUS SLAVES, reprinted in 15 EARLY INDIAN dOCUMENTS, supra note 72, at 74.
183. E.g., Law to Levy Taxes on Slaves and Other Property, reprinted m 16 EARLY INDIAN DOCUMENTS, supra note 72, at 211.
184. a 1712 Massachusetts law, for example, sought to discourage the importation of Indian slaves, declaring that as the "Indians and other slaves" were "of a malicious, surley and revengeful spirit, rude and insolent in their behavior," an increase in their numbers "is likely to prove of pernicious and fatal consequence this province being differently circumstanced from the plantations in the islands, and having great numbers of the Indian natives of the country within and about them." Law to Prohibit the Importation of Indians, reprinted in 17 early indian documents, supra note 72, at 178.
185. Francis Paul Prucha, 1 TheGreat Father: Tte United States Government and american indians 21 (1984);
186. The war was called the Ftench and Indian War by the English, but the Seven Years War by the French. Indian tribes did not uniformly ally with the French, but rather exploited the strategic advantages of diplomatic alliances with the various imperial powers. See RICHTER, supra note 104, at 154-60.
187. See PRUCHA, supra note 149, at 24-25.
188. United States v. Rogers, 45 U.S. (1 How.) 567,572 (1846).
189. See U.S. cONST, art. i, § 2, para. 3.
190. Id. § 8, cl. 3.
191. See Cherokee Nation v.Georgia, 30 U.S. (1 Pet.) 1,18-19 (1831); Robert N. Clinton, The Dormant Indian Commerce Clause, 27 cONN. L. REV. 1055,1169-70(1995).
192. DELORIA, PLAYING INDIAN, supra note 29, at 30-32.
193. See THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA (1785), reprinted in THE IIFE AND SELECTED WRTTINGS OF THOMAS JEFFERSON, at 205-06,213 (Adrienne Koch & William Pedeneds., 1944). Jefferson's comments in this context, while certainly evidence that representations of Indian race could be manipulated according to American needs, are hardly conclusive evidence of a widespread belief in Indian racial equality. Indeed, immediately after praising America's Indians, Jefferson ensured that his statements could not be taken as a testament to racial equality:
194. do not mean to deny that there are varieties in the race of man, distinguished by their powers both of body and mind. I believe there are, as I see to be the case in the races of other animals. I only mean to suggest a doubt, whether the bulk and faculties of animals depend on the side of the Atlantic on which their food happens to grow? Id. at 213.
195. For example, Secretary of War Henry Knox opined that taking Indian land without consent would be "a gross violation of the federal laws of nature, and of that distributive justice which is the glory of a nation," 1 AM. sTATE pAPERSON iNDIAN aFFAIRS 13 (1789), but that "the inevitable consequence of cultivation" was that within "a short period, the idea of an Indian on this side [of] the Mississippi will only be found in the page of the historian." Letter From Henry Knox to George Washington (July 7,1789), 1 AM. STATE PAPERS ON INDIAN AFFAIRS, supra, at 52,53.
196. Letter From George Washington to James Duane (Sept. 7, 1783), in dOCUMENTS OF uNITED sTATES iNDIAN pOLICY 2 (Francis Paul Prucha ed., 3d ed. 2000).
197. ALICE C. FLETCHER, BUREAU OF EDUC, INDIAN EDUCATION AND CIVILIZATION, EXEC. dOC. no. 48-95, at 162 (1888).
198. S. DOC. NO. 21-61, at 8 (1830).
199. H.R. REP. NO. 21-227, at 7 (1830).
200. See Letter of Cherokee David Brown (Sept. 2,1825), quoted in tHOMAS LM' kENNEY, MEMOIRS, OFFICIAL AND PERSONAL; WITH SKETCHES OF TRAVELs AMONG THE NORTHERN AND SOUTHERN INDIANS 38-40 (2d ed. 1846).
201. Bethany R. Berger, "Power Over This Unfortunate Race": Race, Politics and Indian Law in United States v. Rogers, 45 WM. & MARY L REV. 1957,1973-74 (2004).
202. 30U.S.U Pet.) 1(1831).
203. 31 U.S. (1 Pet.) 515 (1832).
204. See Berger, supra note 163, at 1976-77; Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 HARV. L. REV. 381, 400-04 (1993).
205. Cherokee Nation, 30 U.S. at 20.
206. Id. at 21-22 (Johnson, J., concurring).
207. Id. at 23.
208. Id.
209. Id. at 27-28.
210. State v. Tassels, 1 Ga. Rep. Ann. 478,481 (Super. Ct. 1830).
211. See TIM ALAN GARRISON, THE LEGAL IDEOLOGY OF REMOVAL: THE SOUTHERN JUDICIARY AND THE SOVEREIGNTY OF NATIVE AMERICAN NATIONS 119-22 (2002). Like lynchings of African Americans in the Jim Crow period, the hanging was a public spectacle. One observer recalled that, "Every road leading to the town was thronged at an early hour with men and women and children from all parts of the county and many from adjoining counties until a vast multitude was assembled to witness the death of a human being suspended between heaven and earth." Id. at 122.
212. ROSEN, supra note 33, at 113-14,157.
213. 45 U.S. (1 How.) 567 (1846).
214. See id. at 572-73.
215. See id. (explaining that Indians are an "unfortunate race" subject to federal dominion and control); Berger, supra note 163.
216. Rogers, 45 U.S. at 572.
217. 60 U.S. (1 How.) 393 (1856).
218. Id. at 404.
219. Id.
220. S.DOC.NO. 28-1, at 263 (1843).
221. Id. at 264.
222. See Horsman, supra note 36, at 156 (discussing Samuel Morton's collection of Indian skulls).
223. 3 HENRY R. SCHOOLCRAFT, BUREAU OF INDIAN AFFAIRS, INFORMATION RESPECTING THE HISTORY, CONDITION, AND PROSPECTS OF THE INDIAN TRIBES OF THE UNITED STATES, at vii(Pladin Press 1969) (1853).
224. 1 SCHOOLCRAFT, supra note 185, at v.
225. Id. at 15,41.
226. WILLIAM MEDUX, ANNUAL REPORT OF COMMISSIONER OF THE INDIAN AFFAIRS (Nov. 30,1848), reprinted in dOCUMENTS OF uNITED sTATES iNDIAN poucy, supra note 158, at 76,77-79.
227. i sCHOOLCRAFT, supra note 185, at ix, x.
228. See 2005 cOHEN, supra note 21, at 64-65.
229. Id. at 64 (quoting cOMM'R IND. aFF. ANN. rEP., S. eXEC. dOC. No. 31-1 (1850)).
230. See Berger, supra note 163, at 2017.
231. 11 Va.(l Hen.&M.) 133 (1806).
232. See id. at 139. The decision was based in part on a 1793 case, which had held that no Indian could be made a slave after 1705 when a law authorized free trade with the Indians. See Coleman v. Dick & Pat, 1 Va. (1 Wash.) 233 (1793). Even this decision is in contrast with the rest of the statutes of the time, most glaringly with die laws passed that same session declaring that "all negro, mulatto, and Indian slaves shall be held, taken and adjudged, to be real estate (and not chattels)" and that all non-Christian servants, except Turks and Moors, brought into the country by sea or land would be held as slaves. Law to Declare Slaves to Be Real Estate, reprinted in 15 eARLY iNDIAN dOCUMENTS, supra note 72, at 112; Law to Regulate Servants and Slaves, reprinted in 15 eARLY iNDIAN dOCUMENTS, supra note 72, at 114-15. Both decisions may be excused in part by the apparent inaccessibility of the colonial statutes-Justice Tucker wrote that he did not actually have a complete copy of the 1691 statute, but that a clerk had certified that the free trade provision was the same as that in the 1705 law. Hudgins, 11 Va. (1. Hen. & M.) at 138 n.1. It is more likely, however, that the statutorily erroneous decision was based on the difficulty for abolitionist justices like Justice Tucker in upholding slavery, and the desire to have any positivist reason for outlawing it, while reserving it for the African Americans that the statutes had clearly designated as slaves. See rOBERT M. cOVER, jUSTICE aCCUSED: aNTISLAVERY AND THE jUDICIAL pROCESS 51-55 (1975) (discussing the formalist/moral dilemma of Hudgins). Modem scholars, however, have tended to accept Tucker's erroneous holding that Indians could not be held as slaves in Virginia after 1691. See, e.g., Davis, supra note 5, at 703; A. Leon Higginbotham, Jr. & Barbara K. Kopytoff, Racial Purity and Interracial Sex in the haw of Colonial and Antebellum Virginia, 77 geo. LJ. 1967,1973 n.24 (1989). A 1772 decision holding that Indians could not be enslaved in Virginia after 1705 has a far more complete and accurate discussion of the relevant statutes to that time in the arguments of the parties, but the one paragraph decision gives no indication of why the judges accepted the tortured reasoning of the plaintiff as opposed to the more legally accurate reasoning of the defendant. See Robin v. Hardaway.ljeff. 109 (Va. 1772).
233. See Miller v. Dawson, 23 S.C.L (Dud.) 174 (1837).
234. For a discussion of these cases, see Ariela J. Gross, Litigating Whiteness: Trials of Racial Determination in the Nineteenth Century South, 108 YALE LJ. 109,141-51 (1998). The racial attitudes toward Indians could, however, in different circumstances, slip into justifications of slavery. During the brutal California gold rush, slavers raided Indian villages and Indians captured were indentured for up to sixteen years upon payment of a two dollar fee, resulting in enslavement of as many as ten thousand California Indians. fERGUS M. bORDEWICH, kILLING THE wHITE mAN'S iNDIAN: REINVENTING NATIVE AMERICANS AT THE END OF THE TWENTIETH CENTURY 50-51 (1996). Interestingly, legal restrictions on California Indians are far more similar to those placed on African Americans in other parts of the country.
235. 17 eARLY iNDIAN dOCUMENTS, supra note 72, at 204. Similarly, the Cuffees were one of the core families of the Shinnecock tribe of Long Island, helping to preserve the language and traditions of the tribe. See M.R. Harrington, Shinnecock Notes, 16 J. AM. fOLKLORE 37, 37,39 (1903). "Cuffee," however, was an African name that slaves often gave their children.
236. See Joyce A. McCray Pearson, Red and Black: A Divided Seminole Nation, 14 kan. J.L & pub. pol'y 607,609-20 (2005) (describing black participation in Seminole history).
237. See kAREN I. bLU, tHE lUMBEE pROBLEM: tHE mAKING OF AN aMERICAN iNDIAN pEOPLE 45-47,64 (1980).
238. See Ariela Gross, "Of Portuguese Origin": Litigating Identify and Citizenship Among the "Little Races" in Nineteenth-Century America, 25 L. & hIST. REV. 467,506-08 (2007).
239. See Berger, supra note 163, at 2032,
240. See Gross, Portuguese Origin, supra note 200, at 498,506 (describing Lumbee efforts to deny any African heritage and Narragansett efforts to deny that it was relevant). Gross also describes the Melungeons, who responded to efforts to classify them as negro by claiming solely white and Portuguese heritage. Id. at 481-98. Because Gross discusses largely the different claims and reactions to those claims made by the different groups, but not the way those claims may have related to phenotypic differences or differences of political community, it is hard to identify the reasons for these different choices.
241. See William McLoughlin, Red Indians, Black Slavery, 26 Am. Q. 367,368 (1974).
242. Berger, supra note 163, at 2021-24; see McLOUGHLIN, supra note 35, at 338-47 (describing the development of anti-Black prejudice among the Cherokees).
243. See, e.g., Law to Regulate Slaves and Proscribe Intermarriage, reprinted in 15 EARLY INDIAN DOCUMENTS, supra note 72, at 93.
244. See, e.g., Law to Regulate Servants and Slaves, reprinted in 15 EARLY INDIAN DOCUMENTS, supra note 72, at 93.
245. See, e.g., Wells v. Thompson, 13 Ala. 793 (1848) (holding that a white man who had married a Creek woman and abandoned her, which would constitute divorce under Creek law, was not legally divorced and therefore could inherit and sell her allotment); Johnson v. Johnson's Adm'r, 30 Mo. 72 (1860) (holding that the thirty-year cohabitation of a white man and an Indian woman was a valid marriage under Indian custom, so that their children were legitimate and were entitled to inherit despite the claims of the white woman that the father had later married under state law); Morgan v. McGhee, 24 Tenn. (1 Hum.) 13 (1844) (holding that because a Cherokee woman and a white man were validly married, she was a femme couvert and therefore could not sue to enforce a contract).
246. REBECCA BLEVINS FAERY, CARTOGRAPHIES OF DESIRE: CAPTIVITY, RACE, AND SEX IN THE SHAPING OF AN AMERICAN NATION 114 (1999).
247. 1 SCHOOLCRAFT, supra note 185, at xi.
248. United States v. Rogers, 45 U.S. (1 How.) 567, 573 (1846); see Berger, supra note 163, at 1969,2033.
249. As an example, consider the treatment of Cherokees Elias Boudinot and John Ridge and their white wives. The American Missionary Board, committed to the assimilation and equality of Indians, brought Ridge and Boudinot to their Connecticut academy for higher education. But when the Cherokees proposed to the white women who would become their wives, the Academy expelled the offending students and the community burnt one of the couples in effigy. See McLOUGHLIN, supra note 35, at 367-68;
250. see also Kevin Noble Maillard, The Pocahontas Exception: The Exemption of American Indian Ancestry From Racial Purity Law, 12 MICH. J. RACE & L. 351, 359 (2007) (discussing the reactions of the brother-in-law of Boudinot's wife).
251. Letter From Thomas Jefferson to Captain Hendrick, the Delawares, Mohiccons, and Munries (Dec. 21,1808), in THE COMPLETE JEFFERSON 503 (Saul K. Padover ed., 1943).
252. Letter From Thomas Jefferson to William Henry Harrison (Feb. 27,1803), in dOCUMENTS OF UNITED STATES INDIAN POLICY, supra note 158, at 22-23.
253. bERKHOFER, supra note 77, at 89-90.
254. SUSAN SCHECKEL, THE INSISTENCE OF THE INDIAN: RACE AND NATIONALISM IN NINETEENTH- CENTURY AMERICAN CULTURE 139-40 (1998).
255. See bERKHOFER, supra note 77, at 99; Bill Brown, Introduction to ANN sOPHIA sTEPHENS, MALAESKA: THE INDIAN WIFE OF THE WHITE HUNTER (1860), reprinted in READING THE WEST: AN ANTHOLOGY OF DIME WESTERNS 54-55 (Bill Brown ed., 1997). 217 STEPHENS, supra note 216, at 76,124.
256. See bERKHOFER, supra note 77, at 99-100.
257. STEPHENS, supra note 216, at 74.
258. Id. at 73.
259. See Act of Mar. 3,1871, ch. 120, § 1,16 Stat. 570 (1871) (codified at 25 U.S.C. § 71 (2006)).
260. See 2005 COHEN, supra note 21, at 74-75.
261. Cherokee Nation v. Georgia, 30 U.S. (1 Pet.) 1, 26-28 (1831) (Johnson, J., concurring).
262. Dawes Allotment Act, 24 Stat. 388-91 (1887).
263. D.S. OTIS, THE DAWES ACT AND THE ALLOTMENT OF INDIAN LANDS 8 (Francis Paul Pruchaed., 1973) (1934).
264. Merrill E. Gates, Addresses at the Lake Mohonk Conferences (1900), reprinted in AMERICANIZING THE AMERICAN INDIANS, supra note 24, at 342.
265. See Kenneth H. Bobroff, Retelling Allotment: Indian Property Rights and the Myth of Common Ownership, 54 VAND. L. REV. 1559,1564-70 (2001).
266. See 1917 COMM'R INDIAN AFFAIRS ANN. REP. 3-5, reprinted in DOCUMENTS OF UNITED STATES INDIAN POLICY, supra note 158, at 214.
267. WILLIAM T. HAGAN, INDIAN POLICE AND JUDGES: EXPERIMENTS IN ACCULTURATION AND cONTROL 79 (1980) (quoting an 1881 report of Commissioner Hiram Price).
268. RICHARD H. PRATT, INDIAN EDUCATION, reprinted in AMERICANIZING THE AMERICAN INDIANS, supra note 24, at 263.
269. Id. at 269.
270. 118 u.S. 375 (1886).
271. Id. at 384-85
272. . 234- Id. at 384.
273. 187 u.S. 553 (1903).
274. See id. at 567.
275. see dAVID e wLLKINS, aMERICAN iNDIAN sOVEREIGNTY AND THE u.s. sUPREME cOURT: THE MASKING OF JUSTICE 116 (1997).
276. See Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories and the Nineteenth Century Origins of Plenary Power Over Foreign Affairs, 81 tEX. L. REV. 1, 10-11 (2002) (discussing the links between these cases); Philip P. Frickey, Domestkattng Federal Indian Law, 81 mINN. L rEV. 31,39-48 (1997) (discussing the links between Lone Wolf and the Chinese Exclusion Cases).
277. 163 u.S. 537 (1896).
278. Id.
279. 231 u.S. 28(1913).
280. See id.
281. Id. at 39,47-48.
282. Id. at 39.
283. Id.
284. Id. at 46.
285. See Utah & N. Ry. v. Fisher, 116 U.S. 28 (1885) (holding that the territory could tax the railway running through Fort Hill Indian Reservation); United States v. McBratney, 104 U.S. 621 (1882) (holding that Colorado had exclusive jurisdiction over crimes between non-Indians on the Ute Reservation).
286. See Winters v. United States, 207 U.S. 564 (1908) (implying a treaty right to sufficient water to irrigate reservation); United States v. Winans, 198 U.S. 371 (1905) (upholding a treaty right to fish off of the reservation).
287. See, e.g., United States v. Quiver, 241 U.S. 602 (1916) (holding that an exception for federal jurisdiction over crimes between Indians prohibited jurisdiction over the crime of adultery); Talton v. Mayes, 163 U.S. 376 (1896) (holding that the Fifth Amendment did not apply to a Cherokee court trying a Cherokee man); Ex parte Mayfield, 141 U.S. 107 (1891) (holding that a Cherokee man could not be federally prosecuted for adultery with a non-Cherokee woman); Ex parte Crow Dog, 109 U.S. 556 (1883) (rejecting the argument that jurisdiction over crimes between Indians could be implied from a treaty and an agreement with tribe).
288. Ex parte Mayfield, 141 U.S. at 115-16.
289. Ex parte Crow Dog, 109 U.S. at 406.
290. Winters v. United States, 207 U.S. at 576.
291. ROOSEVELT, supra note 25.
292. ROOSEVELT, supra note 25, at 2.
293. ROOSEVELT, supra note 25, at 53.
294. ROOSEVELT, supra note 25, at 205.
295. Id. at 65.
296. 3 ROOSEVELT, supra note 25, at 45-46.
297. Frederick J. Turner, The Winrung of the West, dial, Aug. 1889, at 71 (1889) (book review).
298. Robert A. Trennert, Jr., Selling Indian Education at World's Fairs and Expositions, 1893-1904,11 AM. iNDIAN Q. 203, 206-07 (1987).
299. FREDERICK JACKSON TURNER, THE FRONTIER IN AMERICAN HISTORY 4 (Henry Holt & Co. 1921).
300. Id. at 4,11.
301. Id. at 23.
302. See id. Thus Roosevelt, who winks at the prospect of a little Indian blood within the dominant white race, condemns black slavery for its introduction of an inferior race which threatens to dominate the white stock: [T]he negro, unlike so many of the inferior races, does not dwindle away in the presence of the white man. He holds his own; indeed, under the conditions of American slavery he increased faster than the white, threatening to supplant him. Slavery is ethically abhorrent to all right-minded men; and it is to be condemned without stint on this ground alone. From the standpoint of the master caste it is to [be] condemned even more strongly because it invariably in the end threatens the very existence of that master caste. 4 ROOSEVELT, supra note 25, at 28-29.
303. 1 rOOSEVELT, supra note 25, at 18 n.l.
304. See also Maillard, supra note 211, at 362.
305. See Act of Aug. 9, 1888, ch. 818, 25 Stat. 392 (1888). The act was entitled "An act in relation to marriage between white men and Indian women."
306. 19 Cong. Rec. 6885,6886 (1888). The reference to miscegenation does indicate the ways that prejudice blocked any integration, even of Indians, that challenged white dominance of the American race. Although Virginia's 1924 Racial Purity Act, (the miscegenation law finally declared unconstitutional in Loving v. Virginia), counted as white those whose descent was Caucasian and one-sixteenth American Indian, it also placed all those with more Indian blood in the nonwhite category. Six other states also prohibited marriages between Indians and whites. See sTEPHENSON, supra note 12, at 82-83 (listing Arizona, California, Nevada, North Carolina, Oregon, and South Carolina, as prohibiting Indian-white intermarriage). These states were in a distinct minority, as most states did not prohibit Indian-white marriage. See, e.g., Weaver v. State, 116 So. 893,895 (Ala. Ct. App. 1928) (validating a marriage between a white women and a man of Indian and white descent because neither had black heritage); Free v. State, 194 So. 639 (Fla. 1940) (holding that evidence that a husband was of Indian descent did not invalidate his marriage to a white woman); Scott v. Epperson, 284 P. 19 (Okla. 1930) (noting that a statute prohibiting marriage between whites and those of negro blood would also prohibit marriage between a negro woman and a Creek man); Follansbee v. Wilbur, 44 P. 262 (Wash. 1896) (describing a territorial law prohibiting marriages between white men and Indian women that was repealed in 1868); see ako murray, supra note 12, at 14 (noting that by 1950, only five states prohibited Indian-white marriages, although thirty states prohibited black-white marriages and fifteen prohibited Asian-white marriages).
307. 19 Cong. Rec. 6886 (1888).
308. Id. at 6885-86.
309. PHILIP C GARRETT, INDIAN CITIZENSHIP (1886), reprinted in AMERICANIZING THE aMERICAN iNDIANS, supra note 24, at 61-62. Even the common gender divide, in which alliances with Indian women were an accepted means through which white men could obtain sexual access to tribal virtues, broke down to some extent. Well-known Indian men married white women, including Commissioner Ely Parker, physician Charles Eastman, writer-physician activist Carlos Montezuma, and Antonio Lujan, the Taos Pueblo husband of heiress Mabel Dodge Luhan. See dELORIA, uNEXPECTED pLACES, supra note 29, at 87. The many movies reiterating the grateful Indian maiden theme were joined by a handful of Indian man-white woman love stories, although these relationships were typically doomed. Id. That such movies were made, however, does not mean they were well received. Of rED dEER'S dEVOTION (1911), Moving Picture World complained, "While such a thing is possible, and undoubtedly has been done many times, still there is a feeling of disgust which cannot be overcome when this sort of thing is depicted as plainly as it is here." Id.
310. See Valencia-Weber, supra note 29, at 349 (quoting and discussing a 1937 Department of the Interior publication).
311. See Elk v. Wilkins, 112 U.S. 94, 100, 104-06 (1884) (listing and discussing various laws and treaties providing for citizenship); Dawes Allotment Act, ch. 119, 24 Stat. 390 (1887) (providing citizenship to Indians who took up allotment, separated from their tribe, and adopted the habits of civilized people); Act of Aug. 9,1988, ch. 818, 25 Stat. 392 (1888) (providing citizenship for Indian women marrying white men).
312. Revenue Act of 1924, 43 Stat. 253 (1924); see Joseph William Singer, The Stranger Who Resides With You: Ironies of Asian-American and American Indian Legal History, 40 B.C. L. REV. 171 (1999) (reflecting on the juxtaposition of 1924 immigration and Indian citizenship acts).
313. See ArielaJ. Gross, "The Caucasian Cloak": Mexican Americans and the Politics of Whiteness in the Tuientieth-Century Soudwest, 95 GEO. LJ. 337,346-47 (2007).
314. 112U.S.94.
315. Id. at 100.
316. See id.
317. In re Liquor Election in Beltrami County, 163 N.W. 988, 989 (Minn. 1917) (citing Bem-way-bin-ness v. Eshelby, 87 Minn. 108 (1903)).
318. Id.
319. 226 P. 926,928 (ai. 1924).
320. Id.
321. Id. at 927.
322. Id. at 928-29.
323. Id. at 928.
324. See Transformation of an Indian, in 2 PRUCHA, supra note 149, plate 48 (1984).
325. For more on Philip and Ella Deloria, see AMERICAN INDIAN BIOGRAPHIES 141,143 (Carole Barrett Si Harvey Markowitz eds., rev. ed. 2005). The Deloria academic dynasty began in this fashion. The Lakota anthropologist and ethnographer Hla Deloria, was recruited to Oberlin College from the boarding schools, while her brother Vine Deloria, Sr., father of Philip S. and Vine Deloria, Jr. and grandfather of Philip J. Deloria, Jr., attended St. Stephen's College, later renamed Bard College, on an athletic scholarship before returning home to become an Episcopal minister and Lakota leader. DELORIA, UNEXPECTED PLACES, supra note 29, at 117,133-34.
326. Id. at 135.
327. Id. at 227-28.
328. See id. at 93-96.
329. See id. at 184-85,204-07.
330. BERKHOFER, supra note 77, at 101-02.
331. BLU, supra note 199, at 62. Such distinctions also served white interests: White Democrats may have supported the Lumbee petition for state recognition in part to divert some of the nonwhite vote from the Republican party. Id. at 63.
332. See Red Bird v. United States (Cherokee Intermarriage Cases), 203 U.S. 76,83 (1906) (describing a 1875 Cherokee law providing that intermarried whites could not become citizens in an effort to prevent loss of land through allotment).
333. See In re Atkins'Estate, 3 P.2d 682 (Okla. 1931) (holding that a marriage between a Creek man and a negro woman was illegal, although their children could be considered legitimate and inherit from their father).
334. DELORIA, UNEXPECTED PLACES, supra note 29, at 88.
335. See, e.g., IOLA'S PROMISE (Biograph Co. 1912);
336. THE BROKEN DOLL (Biograph Co. 1910);
337. THE GIRL AND THE OUTLAW (American Mutoscope & Biograph 1908);
338. see also Jack Temple Kirby, D.W. Griffith's Batid Portratoxe, 39 PHYLON 118,123-24 (1978).
339. See Gregory S. Jay, "White Man's Book No Good": D.W. Griffith and the American Indian, 39 CINEMA J. 3,3 (2000);
340. Kirby, supra note 297, at 119.
341. CALL OF THE WILD: SAD PLIGHT OF THE CIVILIZED REDMAN (American Mutoscope & Biography Co. 1908) [hereinafter CALL OF THE WILD].
342. Poster: Call of the Wild (American Mutoscope & Biograph 1908), reprinted in DELORIA, UNEXPECTED PLACES, supra note 29, at 86.
343. Id.
344. Id.
345. Id.
346. Id.
347. 3 ROOSEVELT, supra note 26, at 99.
348. Poster: Call of the Wild, supra note 300.
349. See 2 PRUCHA, supra note 149, at 782.
350. The most important of these was the so-called Meriam Report by the fledgling Brookings Institution. See Frank Miller, Iraroductim, m BROOKINGS INSTITUTION: INSTITUTE FOR GOVERNMENT RESEARCH, THE PROBLEM OF INDIAN ADMINISTRATION, at ix-xiii (1971) (discussing the Meriam Report's history and influence).
351. See 2005 COHEN, supra note 21, at 1339-40.
352. Indian Reorganization Act, 48 Stat. 984 (1934)- For a critique stating that implementation of this policy imposed alien governmental forms on tribal societies, see STEPHEN CORNELL, THE RETURN OF THE NATIVE: AMERICAN INDIAN POLITICAL RESURGENCE 94 (1988).
353. The most succinct summary of this position, and the underlying structure of Cohen's later work, is found in Powers of Indian Tribes, 1 Op. Solicitor Dep't of the Interior 445, 448-50 (1934). For the lasting embodiment of this vision, see 2005 COHEN, supra note 21.
354. 25 U.S.C. §§ 452-457 (2000).
355. S. REP. NO. 73-511, at 1 (1934) (discussing the Johnson-O'Malley Act).
356. See 1 Ops. Solicitor Dep't Interior Relating to Indian Affairs 799-801 (1938). Felix Cohen filed amicus briefs on behalf of American Indian associations and tribes as well as brought some of the first cases challenging discrimination against individual Indians, helping to establish the Indian right to vote and receive public welfare and social security benefits. See Arizona ex rel. Ariz. State Bd. of Pub. Welfare v. Hobby, 221 F.2d 498 (D.C. Cir. 1954) (noting in dicta that the Social Security Administration properly refused to approve an Arizona plan that failed to provide for reservation Indians);
357. Harrison v. Laveen, 196 P.2d 456 (Ariz. 1948) (holding that Indians had the right to vote in Arizona);
358. Acosta v. San Diego County, 272 P.2d 92 (Cal. Dist. Ct. App. 1954) (holding that a reservation Indian was eligible for county welfare relief).
359. 2 PRUCHA, supra note 149, at 1001 n.14.
360. For one of the first such cries, see Armstrong, supra note 11.
361. H.R. REP. NO. 78-2091, at 9 (1944),
362. quoted in.PRUCHA, supra note 286, at 1001-02.
363. 2 PRUCHA, supra note 149, at 1004-05.
364. See Felix S. Cohen, The Erosion of Indian Rights 1950-1953: A Case Study in Bureaucracy, 62 YALE L.J. 348,383 (1953).
365. See Charles F. Wilkinson & Eric R. Biggs, The Evolution of the Termination Policy, 5 AM. INDIAN L. REV. 139, 152-54 (1977). The selection of tribes for termination was inconsistent and ad hoc: Although termination was supposed to target tribes considered prepared for independence, it appears that many were terminated because they were small, because they were in California or Oregon, or simply because they caught the attention of policy makers. See id. at 146. One of the strangest decisions was to terminate the federal status of those Utes with mixed blood.
366. See 25 U.S.C. § 677(d) (2000).
367. See Wilkinson & Biggs, supra note 320, at 151.
368. Act of Aug. 15, 1953, Pub. L. No. 83-280, 67 Stat. 588 (1953).
369. Arthur V. Watkins, Termination of Federal Supervision: The Removal of Restrictions Over Indian Property and Person, 311 ANNALS AM. ACAD. POL. & SOC. SCI. 47, 55 (1957).
370. Cohen, supra note 319, at 389 n.159.
371. See 25 U.S.C. §§ 1301-1303 (2000).
372. In recognition of the central role of religion in Indian governments, for example, the Indian Civil Rights Act (ICRA) does not prohibit establishment of religion. See 25 U.S.C. § 1302(1) (2000);
373. see also Santa Clara Pueblo v. Martinez, 436 U.S. 49,63 n.14 (1978) (discussing some differences between the ICRA and the Bill of Rights). In a further recognition of the important of tribal resolution of fundamental issues, federal review of ICRA matters is only permitted in habeas cases, those where the petitioner's liberty is at stake. Santa Clara Pueblo v. Martinez, 436 U.S. at 67;
374. see 25 U.S.C. § 1303 (2000).
375. See Donald L. Burnett, Jr., An Historical Analysis of the 1968 'Indian Civil Rights' Act, 9 HARV. J. LEGIS. 557,588-89 (1972).
376. See id. at 575.
377. See id. at 584-89.
378. See Karl E. Campbell, Senator Sam Ervin and School Prayer: Faith, Politics, and the Constitution, 45 J. CHURCH & STATE 443,445 (2003).
379. Id.
380. Id.
381. Id. at 444.
382. Burnett, supra note 327, at 575 (citing Letter From Lawrence M. Baskir, Chief Counsel and Staff Director, Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary, to Bennett (March 5,1970) (on file at the office of the Harvard Legislative Research Bureau)).
383. For a more recent example, see OFFICE OF MGMT. & BUDGET, supra note3 (opposing H.R. 505, which seeks to give Native Hawaiians the right to self-governance, on the grounds that it would "divide sovereign United States power along suspect lines of race and ethnicity").
384. Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955).
385. 358 U.S. 217 (1959).
386. To be a citizen of the Navajo Nation, one must have at least one-fourth Navajo blood. NAVAJO NATION CODE tit. 1, §§ 701-703 (2006).
387. Williams, 358 U.S. at 223.
388. Philip P. Frickey, A Common Law for Our Age of Cofonioiism: The Judicial Divestiture of Indian Tribal Authority Over Non-members, 109 YALE L.J. 1, 29 n.140 (1999).
389. See ALISON BERNSTEIN, AMERICAN INDIANS AND WORLD WAR II: TOWARD A NEW ERA IN INDIAN AFFAIRS 40 (1991) (discussing Indian participation in military service).
390. See 2 PRUCHA, supra note 149, at 1009.
391. See NAGEL, supra note 29, at 118.
392. See Stephen Conn, Mid-Passage-The Navajo Tribe and Its First Legal Revolution, 6 AM. INDIAN L REV. 329, 358 (1978) (describing the contribution of Navajo court reforms intended to protect court independence and the Williams decision).
393. See KENNETH R. PHILP, TERMINATION REVISITED: AMERICAN INDIANS ON THE TRAIL TO SELF-DETERMINATION, 1933-1953, at 2 (1999) ("These Native American leaders advocated new forms of self-determination that differed from the melting-pot concept favored by most Euro-Americans").
394. See To SECURE THESE RIGHTS, supra note 13, at 40 ("Protests against these legal bans on Indian suffrage in the Southwest have gained force with the return of Indian veterans to those states.").
395. For an excellent summary of postcttizenship efforts to block Indian political participation, see Jeanette Wolfley, Jim Crow, Indian Style: The Disenfranchisement of Native Americans, 16 AM. INDIAN L. REV. 167, 181-202 (1991).
396. Porter v. Hall, 271 P. 411,417-18 (Ariz. 1928).
397. Harrison v. Laveen, 196 P.2d 456 (Ariz. 1948).
398. MURRAY, supra note 12, at 299;
399. see also Tapia v. Lucero, 195 P.2d 621,621-22 (N.M. 1948) (remanding despite a stipulation that plaintiffs paid "some state and federal taxes," for factual development of the kind of taxes paid, and "the tribal relationship, laws and customs of these Pueblo Indians").
400. See Montoya v. Bolack, 372 P.2d 387, 390-91 (N.M. 1962) (describing the unpublished 1948 order and the 1953 repeal of prohibition).
401. Allen v. Merrell, 305 P.2d 490 (Utah 1956).
402. See Rothfels v. Southworth, 356 P.2d 612, 613 (Utah 1960) (discussing the history of the repeal).
403. MURRAY, supra note 12, at 118. Idaho left in place, however, the prohibition disenfranchising "Chinese or persons of Mongolian descent, not born in the United States." Id.
404. Id. at 423.
405. Id. at 231;
406. see also MINN. CONST, art. VII, § 1, cl. 3,4 (repealed 1960).
407. See Minn. Op. Atty. Gen. 398 (1934) (opining that any Indian born in the United States who meets age and residence qualifications may vote in Minnesota).
408. Special Message on Indian Affairs, 1 PUB. PAPERS 564 (July 8,1970).
409. See 2005 COHEN, supra note 21, at 1346.
410. See, e.g., Indian Mineral Development Act, 25 U.S.C. §§ 2101-2108 (2000);
411. Native American Graves Protection and Repatriation Act, id. §§ 3001-3013; National Indian Forest Resource Management Act, id. §§ 3101-3120.
412. See, e.g., Indian Financing Act, id. § 1451;
413. Indian Gaming Regulatory Act, id. §§ 2701-2721;
414. 2005 COHEN, supra note 21, at 1314-34.
415. Harris, supra note 48, at 1713-14.
416. Id. at 1766-77.
417. 435 U.S. 191 (1978).
418. See Bethany R. Berger, Justice and the Outsider: Jurisdiction Over Nonmembers in Tribal Legal Systems, 37 ARIZ. ST. LJ. 1047, 1054-59 (2005).
419. Olipkant, 435 U.S. at 210 (quoting H.R. REP. NO. 23-474, at 18 (1834)).
420. Id. at 204 (quoting In re Mayfteld, 141 U.S. 107, 115-16 (1891)).
421. See Brief for the United States as Amicus Curiae Supporting Respondents at 5-6, Oliphant v. Suquamish, 435 U.S. 191 (No. 76-5729).
422. See United States v. Wheeler, 435 U.S. 313, 332 (1978).
423. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).
424. 438 U.S. 265 (1978).
425. See 2005 COHEN, supra note 21, at 224-37.
426. 358 US. 217 (1959).
427. See Berger, supra note 365, at 1067.
428. See Powers of Indian Tribes, 1 Op. Solicitor Dep't of the Interior 445, 448-55, 466-76 (1934) (discussing tribal territorial jurisdiction not limited by ownership of land).
429. See, e.g., Carole Goldberg, Descent Into Race, 49 UCLA L. REV. 1373 (2002).
430. See, e.g., Treaty With the Chippewas, U.S.-Chippewa, art. 11, Sept. 30, 1854, 10 Stat. 1109 (granting the right to hunt and fish);
431. Treaty With the Nisqualli, Puyallup, etc. (Treaty of Medicine Creek), art. 3, Dec. 26,1854,10 Stat. 1132 (preserving the "right of taking fish, at all usual and accustomed grounds and stations");
432. Treaty With the Ottawa and Chippewa Nations of Indians, U.S.-Ottawa-Chippewa, art. 13, Mar. 28, 1836, 7 Stat. 491 (providing a right of hunting "with the other usual privileges of occupancy").
433. See Puyallup Tribe v. Wash. Dept. of Game, 391 U.S. 392 (1968);
434. People v. LeBlanc, 248 N.W.2d 199 (Mich. 1976);
435. People v. Jondreau, 185 N.W.2d 375 (Mich. 1971).
436. See LARRY NESPER, THE WALLEYE WAR: THE STRUGGLE FOR OJIBWE SPEARFISHING AND TREATY RIGHTS 31 (Univ. of Neb. Press 2002).
437. Washington v. Wash. Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 696 n.36(1979).
438. See NESPER, supra note 379, at 51, 64.
439. See id. at 70.
440. See id. at 4.
441. Bruce Barcott & Stephen Baxter, What's a River for?, MOTHER JONES, May/June 2003, at 44.
442. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty Abuse Wis., 843 F. Supp. 1284, 1289 (W.D. Wis. 1994).
443. 843 F. Supp. 1284.
444. Id. at 1288.
445. Id.
446. Id. at 1288, 1290.
447. Id. at 1288-89.
448. Id. at 1289.
449. Id. at 1291.
450. Id. at 1285-86.
451. Id. at 1294.
452. See Christine Rose, The Tears of Strangers Are Only Water: The Refusal of America to Understand the Mascot Issue, 1 VA. SPORTS & ENT. L.J. 283, 284 (2002) (noting that over 2700 schools had Indian mascots or team names).
453. The only other human beings used as team names-the Boston Celtics, the Minnesota Vikings, the New England Patriots, and the Notre Dame Fighting Irish-are by groups who are, or historically were, largely descended from these people. Outside reservations, however, the teams named Braves, Indians, Redskins, or Scouts, have historically had virtually no native membership.
454. See Nell Jessup Newton, Memory and Misrepresentation: Representing Crazy Horse, 27 CONN. L REV. 1003, 1010, 1013-14 (1995) (discussing the claim of using Indian team names as a form of honoring).
455. Poster: If You Get Rid of the Fighting Sioux (Mar. 2001) (on file with Univ. of N.D.), availableat http://www.und.nodak.edu/org/bridges/images/ poster2.jpg.
456. See Cramer, supra note 29, at 314-315.
457. See id. at 319, 333.
458. See 25 U.S.C. § 2710 (2000).
459. Cramer, supra note 29, at 330.
460. Id.
461. See MCLOUGHUN, supra note 35, at 31-32 (1983);
462. THE CONSTIUTION AND LAWS OF THE CHEROKEENATION: PASSED AT TAHLEQUAH, CHEROKEE NATION, 1839-51, at 19,44,53,212 (1852).
463. Treaty With the Cherokees, U.S.-Cherokee, art. IX, July 19,1866,14 Stat. 799.
464. See Vann v. Kempthome, 534 F.3d 741,744 (D.C. Cir. 2008).
465. S.E. Ruckman, Cherokee Freedmen: Tribe Reinstates Citizenship Until Appeals Finished, TULSA WORLD, May 15,2007, at A13.
466. See Kirsty Gover, Genealogy as Continuity; Explaining the Growing Tribal Preference for Descent Rules in Membership Governance, 33 AM. INDIAN L. REV (forthcoming 2009).
467. Id.
468. Before the constitutional amendment, the Cherokee high court struck down as unconstitutional an ordinance preventing freedmen citizens from voting, Allen v. Cherokee Nation Tribal Council, JAT-04-09 (Okla. Trib. 2006). Since the constitutional amendment, a new suit has been making its way through the tribal courts. See. S.E Ruckman, supra note 407.
469. Legislative measures are largely stayed as a challenge to the measure continues through the courts. Vann v. Kempthorne, 534 F3d 741 (D.C Cir. 2008).
470. See Carole Goldberg, Members Only? Designing Citizenship Requirements for Indian Nations, 50 U. KAN. L. REV. 437, 446-71 (2002) (discussing the federal pressures and tribal concerns that may support descent-based membership requirements);
471. Gover, supra note 408.
472. Morton v. Mancari, 417 U.S. 535, 555 (1974).
473. See, e.g., Goldberg, supra note 376 (discussing cases rejecting the application of the Indian Child Welfare Act and implementation of the Reindeer Industry Act to favor Alaska Natives);
474. H.R. 505 POLICY STATEMENT, supra note 3 (opposing strongly a measure to recognize Native Hawaiian sovereignty on the grounds that it "would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups according to varying degrees of privilege").
475. Goldberg, supra note 412, at 446-71.
476. See, e.g., Angela R. Riley, Good (Native) Governance, 107 COLUM. L. REV. 1049 (2007).
477. See, e.g., LAURA E. GÓMEZ, MANIFEST DESTINIES: THE MAKING OF THE MEXICAN AMERICAN RACE (2007) (discussing the formation of a Mexican racial identity);
478. FRANK H. WU, YELLOW: RACE IN AMERICA BEYOND BLACK AND WHITE (2002) (discussing the position of Asians in American society);
479. Leti Volpp, Divesting Citizenship: On Asian American History and the Loss of Citizenship Through Marriage, 53 UCLA L REV. 405 (2005) (discussing the intersections of race and gender in citizenship laws affecting Asian women).
480. See also Laura E. Gómez, Race Mattered: Racial Formation and the Politics of Crime in Territorial New Mexico, 49 UCLA L. REV. 1395, 1399 (2002) ("Typically discussions of race ignore the centrality of colonialism in understanding Mexican, Puerto Rican, Native American, Filipino, Native Hawaiian, and other now-American racial minority groups.").
481. See James H. Sweet, The Iberian Roots of American Racist Thought, 54 WM. & MARY Q. 143,144 (1997);
482. see also Brooke, supra note 77, at 20.
483. Matsuda, supra note 47, at 170.
484. See Paulette M. Caldwell, A Hair Piece; Perspectives on the Intersection of Race and Gender, 1991 DUKE L.J. 365 (discussing legal and public reactions to traditionally "Black" hairstyles);
485. Devon W. Carbado &. Mitu Gulati, The Law and Economics of Critical Race Theory, 112 YALE L.J. 1757 (2003) (discussing employment discrimination and performative aspects of race).