Attorney General Holder is right: Racial animus plays role in Obama opposition

Posted in Articles, Barack Obama, Law, Media Archive, Politics/Public Policy, United States on 2014-07-24 06:33Z by Steven

Attorney General Holder is right: Racial animus plays role in Obama opposition

Southern Poverty Law Center
2014-07-16

Morris Dees, Founder, Chief Trial Attorney

Right-wing pundits are jumping all over Attorney General Eric Holder for daring to suggest on Sunday that “racial animus” plays a role in the “level of vehemence” that’s been directed at President Obama. They’re denouncing him for “playing the race card” and “stoking racial divisions.”

Who do they think they’re fooling?…

…And, we’ve seen an explosive growth of radical-right groups, including armed militias, since Obama was elected, and repeated threats that violence is needed to “take our country back” from the “tyranny” of Obama. This is part of a backlash to the growing diversity in our country, as symbolized by the presence of a black man in the White House…

Read the entire article here.

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The Institutional Racism Against Black Indians

Posted in Anthropology, Articles, Law, Media Archive, Native Americans/First Nation, United States on 2014-07-06 01:18Z by Steven

The Institutional Racism Against Black Indians

Indian Country Today Media Network.com
2014-07-04

Julianne Jennings

Black Indians are constantly confronted with the fact that they do not fit any of society’s stereotypes for Native Americans. Those stereotypes are imposed by both whites and sadly, other Indians. This lack of understanding of another nation’s history has interwoven ignorance thus extinguishing fact. Nevertheless, despite their own distortions and mutations of the past, it is interesting to note how the right to remember or forget are not going unnoticed; where personal biographies have intersected with historical watershed events (i.e. slavery, blood-mixing, cultural blending) is now producing historically-conscious discourse about race, racism, and who is a “real” Indian.

Raymond H. Brooks, 72, Montaukett Nation, Long Island, New York, was made furious from a recent posting he read on Facebook. The post read, “My good friend is a real Indian because he lives on an Indian reservation and the government gives him money. That’s how you can tell who a real Indian is.”

Those who hold the power, get to set the rules; and according to Brooks, “Our tribe had its status taken away in 1910 because a New York State county Judge Abel Blackmar said, “We were no longer a tribe because we had intermarried with blacks and whites. And that when he looked around the court room, He didn’t see any Indians” The tribe has been fighting to get their State recognition restored ever since. You can go to the tribes website and read their history and what is currently happening with their Bill (montauktribe.Org).

…Employing discredited biological over cultural definitions of who is an Indian and who is not is an assault on our self-determination. We have endured 450 years of forced assimilation which included slavery and post slavery intermarriage, making our walk one of plurality. We are therefore all multiracial. Blood mixing is also believed to be the reason certain phenotypes (physical characteristics) common within Native people also occur in African American populations…

Read the entire article here.

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Elective Race: Recognizing Race Discrimination in the Era of Racial Self-Identification

Posted in Articles, Law, Literary/Artistic Criticism on 2014-06-23 02:53Z by Steven

Elective Race: Recognizing Race Discrimination in the Era of Racial Self-Identification

Georgetown Law Journal
Georgetown University, Washington, D.C.
Volume 102, Issue 5 (2014)
pages 1501-1572

Camille Gear Rich, Associate Professor of Law
University of Southern California, Gould School of Law

This Article posits that we are in a key moment of discursive and ideological transition, an era in which the model of elective race is ascending, poised to become one of the dominant frameworks for understanding race in the United States. Because we are in a period of transition, many Americans still are wedded to fairly traditional attitudes about race. For these Americans, race is still an objective, easily ascertainable fact determined by the process of involuntary racial ascription—how one’s physical traits are racially categorized by third parties. The elective-race framework will challenge these Americans to recognize other ways in which people experience race, including acts of voluntary affiliation as well as selective and conditional affiliations. Importantly, even if one concludes that most Americans still hold traditional, ascriptive-based understandings of race, there is evidence that elective race is steadily gaining influence in certain quarters, shaping government institutions’ formal procedures as well as certain Americans’ racial understandings.

To improve the clarity and precision of discussions about elective race, this Article outlines the key premises and norms associated with this ideological framework. My primary goal is to help courts and scholars understand the basic tenets and tensions that are likely to be present in plaintiffs’ elective-race claims. Although some scholars have trivialized racial self-identification interests or represented them as a threat to antidiscrimination law, my project is to show that racial self-identification decisions matter in concrete ways because they can trigger serious race-based social sanctions that are a core antidiscrimination law concern. Indeed, as we will see, voluntary racial-affiliation decisions can and do trigger race-based resentment, rejection, and social sanction when race-based resentment, rejection, and social sanction when they do not match certain expected or established American understandings about the boundaries of racial categories. Moreover, I predict that, though the number of cases that sound in the nature of elective race may be small at present, we should expect to see more cases of this kind given both the increased focus Americans place on the interest in racial self-identification and the shift toward institutional protocols that are intended to accommodate this interest. The elective-race cases will challenge courts, forcing them to decide whether Title VII of the Civil Rights Act of 1964 (Title VII) should recognize the autonomy claims of individuals who are injured in the workplace by the social and formal processes of involuntary racialization. Courts will be asked to rule on cases that suggest that an employee’s dignity interests are unjustly frustrated when other fail to respect the employee’s right to racial self-definition.

Read the entire article here.

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Race, Sex, and the Freedom to Marry: Loving v. Virginia

Posted in Books, Forthcoming Media, History, Law, Monographs, United States, Virginia on 2014-06-08 23:28Z by Steven

Race, Sex, and the Freedom to Marry: Loving v. Virginia

University Press of Kansas
November 2014
296 pages
5-1/2 x 8-1/2
Cloth ISBN 978-0-7006-1999-3, $39.95(s)
Paper ISBN 978-0-7006-2000-5, $19.95(s)
Ebook ISBN 978-0-7006-2048-7

Peter Wallenstein, Professor of History
Virginia Polytechnic Institute and State University

In 1958 Mildred Jeter and Richard Loving, two young lovers from Caroline County, Virginia, got married. Soon they were hauled out of their bedroom in the middle of the night and taken to jail. Their crime? Loving was white, Jeter was not, and in Virginia—as in twenty-three other states then—interracial marriage was illegal. Their experience reflected that of countless couples across America since colonial times. And in challenging the laws against their marriage, the Lovings closed the book on that very long chapter in the nation’s history. Race, Sex, and the Freedom to Marry tells the story of this couple and the case that forever changed the law of race and marriage in America.

The story of the Lovings and the case they took to the Supreme Court involved a community, an extended family, and in particular five main characters—the couple, two young attorneys, and a crusty local judge who twice presided over their case—as well as such key dimensions of political and cultural life as race, gender, religion, law, identity, and family. In Race, Sex, and the Freedom to Marry, Peter Wallenstein brings these characters and their legal travails to life, and situates them within the wider context—even at the center—of American history. Along the way, he untangles the arbitrary distinctions that long sorted out Americans by racial identity—distinctions that changed over time, varied across space, and could extend the reach of criminal law into the most remote community. In light of the related legal arguments and historical development, moreover, Wallenstein compares interracial and same-sex marriage.

A fair amount is known about the saga of the Lovings and the historic court decision that permitted them to be married and remain free. And some of what is known, Wallenstein tells us, is actually true. A detailed, in-depth account of the case, as compelling for its legal and historical insights as for its human drama, this book at long last clarifies the events and the personalities that reconfigured race, marriage, and law in America.

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Fathers of Conscience with Bernie D. Jones [Part 2]

Posted in Audio, Forthcoming Media, History, Interviews, Law, Live Events, Slavery, United States on 2014-05-08 00:10Z by Steven

Fathers of Conscience with Bernie D. Jones [Part 2]

Research at the National Archives & Beyond
Blogtalk Radio
2014-05-08, 21:00 EDT (2014-05-09, 02:00Z)

Bernice Bennett, Host

Bernie D. Jones, Associate Professor of Law
Suffolk University, Boston, Massachusetts

Join Author Bernie D. Jones for an engaging discussion about her book – Fathers of Conscience – Mixed-Race Inheritance in the Antebellum South.

Fathers of Conscience examines high-court decisions in the antebellum South that involved wills in which white male planters bequeathed property, freedom, or both to women of color and their mixed-race children. These men, whose wills were contested by their white relatives, had used trusts and estates law to give their slave partners and children official recognition and thus circumvent the law of slavery. The will contests that followed determined whether that elevated status would be approved or denied by courts of law.

For more information, click here.

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Opinion: Supreme Court ruling upholds America’s mixed view

Posted in Articles, Census/Demographics, History, Law, Media Archive, United States on 2014-04-25 07:16Z by Steven

Opinion: Supreme Court ruling upholds America’s mixed view

Cable News Network (CNN)
2014-04-24

Martha S. Jones, Arthur F Thurnau Professor, Associate Professor of History and Afroamerican and African Studies
University of Michigan

(CNN) — I didn’t expect to find the specter of the mixed-race person making an appearance in Tuesday’s Supreme Court decision that upheld Michigan’s ban on affirmative action.

But there it was.

In Schuette v. Coalition to Defend Affirmative Action, Justice Anthony Kennedy, writing for the plurality, cast doubt upon the court’s capacity to deliberate over race cases — and mixed-raced people were said to be the culprits.

Kennedy wrote that “not all individuals of the same race think alike.” Fair enough. But then he went on to suggest that mixed-race people confound the court’s capacity to “define individuals according to race.”

He continued (PDF), “In a society in which those lines are becoming more blurred, the attempt to define race-based categories also raises serious questions of its own.”

When we blur the lines, as mixed-race people like me are said to do, are we really undermining the court’s capacity to determine questions about the equal protection of the laws?

Kennedy’s view feels familiar: There is nothing new about regarding mixed-race people as a problem in the United States.

We can trace this idea to the earliest lawmaking in British colonial America. The first laws to regulate race were those that prohibited sex and marriage across the color line…

Read the entire opinion piece here.

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Intermarried-Whites in the Cherokee Nation Between the Years 1865 and 1887

Posted in Articles, History, Law, Native Americans/First Nation, United States on 2014-04-09 23:19Z by Steven

Intermarried-Whites in the Cherokee Nation Between the Years 1865 and 1887

Chronicles of Oklahoma
Volume 6, Number 3 (September, 1928)
pages 299-326

A. H. Murchison
Muskogee, Oklahoma

The Cherokee Indians in all their various treaties with the United States, numbering about twenty, obtained provisions whereby the United States was to exclude intruding white persons from their territory. We find, however, as far back as 1819 in their written laws1 where the Cherokees made provision to take care of and authorize intermarriage. Data concerning the Cherokee Indians concerns Oklahoma and, as a number of the laws under which they lived in Indian Territory were formerly passed in the states of Tennessee and Georgia, it would be interesting to follow their intermarriage laws from the first written in the East to those passed in the West up to about the year 1869.

Several of the old Cherokee Laws and Resolutions start with the words, “Whereas, a law has been in existence for many years, but not committed to writing, that if * * * etc.,” This wording is not prefixed to any of the intermarriage laws and it is reasonable to deduct that prior to 1819 there had been no law on the matter.

This first law passed at “New Town, Cherokee Nation, November 2, 1819” follows:

“RESOLVED BY THE NATIONAL COMMITTEE AND COUNSEL, That any white man who shall hereafter take a Cherokee woman to wife be required to marry her legally by a minister of the gospel or other authorized person, after procuring license from the National Clerk for that purpose, before he shall be entitled and admitted to the privileges of citizenship, and in order to avoid imposition on the part of any white man,

RESOLVED, That any white man who shall marry a Cherokee woman the property of the woman so marry, shall not be subject to the disposal of her

husband, contrary to her consent, and any white man so married and parting from his wife without just provocation, shall forfeit and pay to his wife such sum or sums, as may be adjudged to her by the National Committee and Council for said breach of marriage, and be deprived of citizenship, and it is also resolved, that it shall not be lawful for any white man to have more than one wife, and it is also recommended that all others should also have but one wife hereafter.  By order of the National Committee.

Jno Ross, Pres’t N. Com.
Approved—Path (his x mark) Killer
Chas R. Hicks,
A. McCoy, Clerk.”….

Read the entire article here.

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Miscegenation Law, Court Cases, and Ideologies of “Race” in Twentieth-Century America

Posted in Articles, History, Law, Media Archive, United States on 2014-04-09 22:33Z by Steven

Miscegenation Law, Court Cases, and Ideologies of “Race” in Twentieth-Century America

The Journal of American History
Volume 83, Number 1 (June, 1996)
pages 44-69

Peggy Pascoe (1954-2010), Beekman Professor of Northwest and Pacific History
University of Oregon

On March 21, 1921, Joe Kirby took his wife, Mayellen, to court. The Kirbys had been married for seven years, and Joe wanted out. Ignoring the usual option of divorce, he asked for an annulment, charging that his marriage had been invalid from its very beginning because Arizona law prohibited marriages between “persons of Caucasian blood, or their descendants” and “negroes, Mongolians or Indians, and their descendants.” Joe Kirby claimed that while he was “a person of the Caucasian blood,” his wife, Mayellen, was “a person of negro blood.”

Although Joe Kirby’s charges were rooted in a well-established—and tragic—tradition of American miscegenation law, his court case quickly disintegrated into a definitional dispute that bordered on the ridiculous. The first witness in the case was Joe’s mother, Tula Kirby, who gave her testimony in Spanish through an interpreter. Joe’s lawyer laid out the case by asking Tula Kirby a few seemingly simple questions:

Joe’s lawyer: To what race do you belong?
Tula Kirby: Mexican.
Joe’s lawyer: Are you white or have you Indian blood?
Kirby: I have no Indian blood.
. . . . . . . . . . . . . . . . . . . .
Joe’s lawyer: Do you know the defendant [Mayellen] Kirby?
Kirby: Yes.

Joe’s lawyer: To what race does she belong?
Kirby: Negro.

Then the cross-examination began.

Mayelien’s lawyer: Who was your father?
Kirby: Jose Romero.
Mayelien’s lawyer: Was he a Spaniard?
Kirby: Yes, a Mexican.
Mayellen’s lawyer: Was he born in Spain?
Kirby: No, he was born in Sonora.
Mayellen’s lawyer: And who was your mother?
Kirby: Also in Sonora.
Mayellen’s lawyer: Was she a Spaniard?
Kirby: She was on her fathers side.
Mayelien’s lawyer: And what on her mother’s side?
Kirby: Mexican.
Mayellen’s lawyer: What do you mean by Mexican, Indian, a native [?]
Kirby: I don’t know what is meant by Mexican.
Mayellen’s lawyer: A native of Mexico?
Kirby: Yes, Sonora, all of us.
Mayellen’s lawyer: Who was your grandfather on your father’s side?
Kirby: He was a Spaniard.
Mayellen’s lawyer: Who was he?
Kirby: His name was Ignacio Quevas.
Mayellen’s lawyer: Where was he born?
Kirby: That I don’t know. He was my grandfather.
Mayellen’s lawyer: How do you know he was a [S]paniard then?
Kirby: Because he told me ever since I had knowledge that he was a Spaniard.

Next the questioning turned to Tula’s opinion about Mayellen Kirby’s racial identity.

Mayellen’s lawyer: You said Mrs. [Mayellen] Kirby was a negress. What do you know about Mrs. Kirby’s family?
Kirby: I distinguish her by her color and the hair; that is all I do know.

The second witness in the trial was Joe Kirby, and by the time he took the stand, the people in the courtroom knew they were in murky waters. When Joe’s lawyer opened with the question “What race do you belong to?,” Joe answered “Well . . . ,” and paused, while Mayellen’s lawyer objected to the question on the ground that it called for a conclusion by the witness. “Oh, no,” said the judge, “it is a matter of pedigree.” Eventually allowed to answer the question, Joe said, “I belong to the white race I suppose.” Under cross-examination, he described his father as having been of the “Irish race,” although he admitted, “I never knew any one of his people.”

Stopping at the brink of this morass, Joe’s lawyer rested his case. He told the judge he had established that Joe was “Caucasian.” Mayellen’s lawyer scoffed, claiming that Joe had “failed utterly to prove his case” and arguing that “[Joe's] mother has admitted that. She has [testified] that she only claims a quarter Spanish blood; the rest of it is native blood.” At this point the court intervened. “I know,” said the judge, “but that does not signify anything.”

From the Decline and Fall of Scientific Racism to an Understanding of Modernist Racial Ideology

The Kirbys’ case offers a fine illustration of Evelyn Brooks Higginbotham’s observation that, although most Americans are sure they know “race” when they see it, very few can offer a definition of the term. Partly for this reason, the questions of what “race” signifies and what signifies “race” are as important for scholars today as they were for the participants in Kirby v. Kirby seventy-five years ago. Historians have a long—and recently a distinguished—record of exploring this question. Beginning in the 1960s, one notable group charted the rise and fall of scientific racism among American intellectuals. Today, their successors, more likely to be schooled in social than intellectual history, trace the social construction of racial ideologies, including the idea of “whiteness,” in a steadily expanding range of contexts.

Their work has taught us a great deal about racial thinking in American history.  We can trace the growth of racism among antebellum immigrant workers and free-soil northern Republicans; we can measure its breadth in late-nineteenth-century segregation and the immigration policies of the 1920s. We can follow the rise of Anglo-Saxonism from Manifest Destiny through the Spanish-American War and expose the appeals to white supremacy in woman suffrage speeches. We can relate all these developments (and more) to the growth and elaboration of scientific racist attempts to use biological characteristics to scout for racial hierarchies in social life, levels of civilization, even language.

Yet the range and richness of these studies all but end with the 1920s. In contrast to historians of the nineteenth- and early-twentieth-century United States, historians of the nation in the mid- to late-twentieth century seem to focus on racial ideologies only when they are advanced by the far Right (as in the Ku Klux Klan) or by racialized groups themselves (as in the Harlem Renaissance or black nationalist movements). To the extent that there is a framework for surveying mainstream twentieth-century American racial ideologies, it is inherited from the classic histories that tell of the post-1920s decline and fall of scientific racism. Their final pages link the demise of scientific racism to the rise of a vanguard of social scientists led by the cultural anthropologist Franz Boas: when modern social science emerges, racism runs out of intellectual steam. In the absence of any other narrative, this forms the basis for a commonly held but rarely examined intellectual trickle-down theory in which the attack on scientific racism emerges in universities in the 1920s and eventually, if belatedly, spreads to courts in the 1940s and 1950s and to government policy in the 1960s and 1970s.

A close look at such incidents as the Kirby case, however, suggests a rather different historical trajectory, one that recognizes that the legal system does more than just reflect social or scientific ideas about race; it also produces and reproduces them. By following a trail marked by four miscegenation cases —the seemingly ordinary Kirby v. Kirby (1922) and Estate of Monks (1941) and the path breaking Perez v. Lippold (1948) and Loving v. Virginia (1967)—this article will examine the relation between modern social science, miscegenation law, and twentieth-century American racial ideologies, focusing less on the decline of scientific racism and more on the emergence of new racial ideologies.

In exploring these issues, it helps to understand that the range of nineteenth- century racial ideologies was much broader than scientific racism. Accordingly, I have chosen to use the term racialism to designate an ideological complex that other historians often describe with the terms “race” or “racist.” I intend the term racialism to be broad enough to cover a wide range of nineteenth-century ideas, from the biologically marked categories scientific racists employed to the more amorphous ideas George M. Fredrickson has so aptly called ‘romantic racialism.” Used in this way, “racialism” helps counter the tendency of twentieth-century observers to perceive nineteenth-century ideas as biologically “determinist” in some simple sense. To racialists (including scientific racists), the important point was not that biology determined culture (indeed, the split between the two was only dimly perceived), but that race, understood as an indivisible essence that included not only biology but also culture, morality, and intelligence, was a compellingly significant factor in history and society.

My argument is this: During the 1920s, American racialism was challenged by several emerging ideologies, all of which depended on a modern split between biology and culture. Between the 1920s and the 1960s, those competing ideologies were winnowed down to the single, powerfully persuasive belief that the eradication of racism depends on the deliberate non-recognition of race. I will call that belief modernist racial ideology to echo the self-conscious “modernism” of social scientists, writers, artists, and cultural rebels of the early twentieth century. When historians mention this phenomenon, they usually label it “antiracist” or “egalitarian” and describe it as in stark contrast to the “racism” of its predecessors. But in the new legal scholarship called critical race theory, this same ideology, usually referred to as “color blindness,” is criticized by those who recognize that it, like other racial ideologies, can be turned to the service of oppression.

Modernist racial ideology has been widely accepted; indeed, it compels nearly as much adherence in the late-twentieth-century United States as racialism did in the late nineteenth century. It is therefore important to see it not as what it claims to be—the non-ideological end of racism—but as a racial ideology of its own, whose history shapes many of today’s arguments about the meaning of race in American society…

Read the entire article here.

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Race, Descent, and Tribal Citizenship

Posted in Articles, Law, Media Archive, Native Americans/First Nation, United States on 2014-04-09 18:12Z by Steven

Race, Descent, and Tribal Citizenship

California Law Review Circuit
Volume 4 (April 2013)
pages 23-47

Bethany R. Berger, Thomas F. Gallivan, Jr. Professor of Real Property Law
University of Connecticut

What is the relationship between descent-based tribal citizenship requirements and race or racism? This essay argues that tribal citizenship laws that require Indian or tribal descent are generally neither the product nor the source of racism in federal Indian law and policy. And while descent does affect multiple areas of federal Indian law and policy, citizenship requirements do not drive many of them. Descent as used in tribal citizenship criteria, moreover, only has a tenuous connection to race as it is commonly understood. More importantly, recognizing governmental authority in tribes that use descent-based citizenship criteria does not violate either federal law or federal norms.

This is a big topic, one this essay cannot fully explore. In part this is because questions of race and descent do not just influence tribal citizenship criteria, but also many areas of federal Indian law and policy. To illustrate this point, I begin this essay in a somewhat counterintuitive place, with the reauthorization of the Violence Against Women Act.

Three out of five Native women will experience domestic violence in their lifetimes. One third of all Native women will be raped, more than twice the national average. Sixty-three percent of these assaults and sixty-seven percent of these rapes are at the hands of non-Native perpetrators. This is a reversal of the pattern for most other races, where the race of the survivor and perpetrator is typically the same.

But in 1978, the Supreme Court decreed that tribes had no criminal jurisdiction over non-Indians committing crimes in their territory. Later decisions deprived tribes of much civil jurisdiction as well. The results were that tribes could not impose criminal penalties on non-Indian abusers, and some tribal governments would not even enter civil orders because of the uncertainty of tribal civil jurisdiction; when civil orders were entered, some state and federal courts refused to enforce them. Amnesty International found that the lack of jurisdiction over non-Indians helped create a culture of impunity for perpetrators of violence against women in Indian country.

When the authors of the bill to reauthorize the Violence Against Women Act proposed affirming tribal criminal and civil jurisdiction over anyone, Indian or non-Indian, who commits domestic violence against an Indian in Indian country, both women’s advocates and tribes celebrated. A group of congressional Republicans, however, argued that it was unconstitutional for tribes to exercise jurisdiction over “any American”—i.e., non-Indian Americans. Their objections were made in the name of racial equality. Senator Jon Kyl, for example, declared that “by subjecting individuals to the criminal jurisdiction of a government from which they are excluded on account of race,” the bill violated the Due Process and the Equal Protection provisions of the U.S. Constitution.

At the same time, a situation in which only tribes cannot exercise local jurisdiction over all domestic violence problems in their territory, and only Indian women abused by non-Indians are excluded by this lack of jurisdiction, also appears to be one of racial disparity. Responding to congressional opponents of the bill, Representative Darrell Issa of California called the “current law a clear discrimination between two residents of the reservation simply based on race.”

Objections to tribal courts trying non-Indian men for beating Indian women led to a nine-month delay in reauthorizing VAWA. Efforts to strip the provision from the bill, along with provisions seeking to ensure protection for LGBT and immigrant victims, failed in the Senate but succeeded in the House last May. After more coalition building, advocacy, removal of additional visas for undocumented immigrants, and the November 2012 elections, the bill passed the Senate by 78-to-22 on February 12, 2013. Finally, on February 28, the bill passed the House, with 87 Republicans joining all but one Democrat to vote in favor.

This story reveals some of the multiple and contested roles that race, descent, and tribal citizenship play in Indian country. As examined in recent important work by Sarah Krakoff and Addie Rolnick, Indian status is with race, because modern Indian status is forged by the often racist efforts to deal with and contain the political sovereignty of indigenous peoples. The continued reliance by tribes on descent to define their political boundaries, however, is not the source of this racialization. While specific citizenship choices may be motivated by ignoble goals, the reliance on descent in general comes from efforts to maintain political continuity and cohesion in the face of persistent and racist efforts to destroy tribes. Neither federal constitutional law nor international norms prevent descent-based citizenship criteria or recognition of territorial sovereignty in tribes that employ them.

This essay proceeds in three parts. First, it highlights the common misunderstandings associated with the relationship between race, descent, and Indian status. Second, it outlines the many contrasting relationships between race, descent, membership, and Indian law, showing that tribal citizenship criteria frequently do not drive these relationships, and are not the source of racism against Indians or tribes. Finally, this essay addresses and rejects challenges that federal Indian law and tribal citizenship criteria are racist, illegal, or immoral because of the role of descent…

Read the entire article here.

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Regulating White Desire

Posted in Articles, Law, Media Archive, United States, Virginia on 2014-04-08 21:55Z by Steven

Regulating White Desire

Wisconsin Law Review
Volume 2007, Number 2 (2007)
pages 463-488

Reginald Oh, Professor of Law
Cleveland Marshall College of Law
Cleveland State University

  • Introduction
  • II. Loving v. Virginia
  • III. The Greatest Threat to the Purity of the White Race: Social Equality Through Interracial Marriage
  • IV. Miscegenation and Segregation Laws and the Legal Enforcement of White Racial Endogamy
    • A. The Enforcement of White Endogamy Norms During and After Slavery
    • B. White Racial Endogamy and the Segregation of Public Schools
    • C. The Regulation of White Women’s Desires
  • V. Back to Loving
  • VI. Conclusion

I. INTRODUCTION

In the landmark decision Loving v. Virginia, the United States Supreme Court held that laws prohibiting interracial marriages violated the Fourteenth Amendment’s Equal Protection Clause because they served the impermissible purpose of maintaining white supremacy. The Commonwealth of Virginia had argued that, because the law equally punished whites and blacks, it did not illegitimately single out African Americans for discriminatory treatment. In striking down the statute, the Court rejected the notion that the equal application of miscegenation laws made them consistent with equal protection.

The Court, however, never adequately addressed an apparent flaw in its reasoning. According to conventional understandings of how white supremacy operates, laws promoting white supremacy are supposed to invidiously discriminate against blacks while benefiting whites. But how can miscegenation laws promote white supremacy and the interests of whites if the laws actually restrict their fundamental right of association and punish them if they cross racial boundaries? Was the Court contending that miscegenation laws promoted white supremacy in spite of their incidental effects on the individual rights of whites?

This Article will argue that miscegenation laws functioned to promote the supremacy of the white race by, paradoxically, deliberately regulating and restricting the liberty of white individuals. Segregationists feared that some whites, particularly women and children, wanted to relate to blacks as social equals. Without legal restrictions on the associational rights of whites, segregationists feared that blacks would gain social equality and freely enter into equal intimate relations—and ultimately marriages—with them. This would result in more interracial families, and inevitably end in the creation of a nation of a “mongrel breed of citizens.”

This Article contends that segregationist justifications for miscegenation and segregation laws shows that those laws effectively imposed a legal duty on whites to adhere to cultural norms of endogamy.  Dominant social groups enforce rules of endogamy—the cultural practice of encouraging people to marry within their own social group—to protect the dominant status of their individual members and of the social group in general. Thus, laws prohibiting interracial marriages regulated white desire in order to protect the dominant status of whites as a group. The Loving Court, therefore, ultimately was correct in declaring that miscegenation laws denied blacks equal protection.

Part II of this Article discusses miscegenation laws and the Loving decision. It contends that the Court understood that miscegenation laws operated to protect white supremacy, but that it failed to adequately explain how such laws did so. Part III argues that the primary rationale used to justify these laws was the protection of the purity of the white race. Part IV will explain these laws’ history and demonstrate that segregationists enacted and supported them to ensure that whites practiced endogamy. Part V concludes by reexamining the Loving decision in light of this Article’s analysis…

Read the entire article here.

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