Mixed Race Studies

People of Mixed Ancestry in the Seventeenth-Century Chesapeake: Freedom, Bondage, and the Rise of Hypodescent Ideology

Journal of Social History
Volume 52, Number 3, Spring 2019
pages 593-618
DOI: 10.1093/jsh/shx113

A. B. Wilkinson, Assistant Professor of History
University of Nevada, Las Vegas

This article examines the origins of mixed-race ideologies and people of mixed African, European, and Native American ancestry—commonly identified as mulattoes—in the seventeenth-century English colonial Chesapeake and wider Atlantic world. Arguably, for the better part of the century, English colonial societies in the Chesapeake resembled Latin America and other Atlantic island colonies in allowing a relatively flexible social hierarchy, in which certain mixed-heritage people benefitted from their European lineage. Chesapeake authorities began to slowly set their provinces apart from their English colonial counterparts in the 1660s, when they enacted laws to deter intimate intermixture between Europeans and other ethnoracial groups and set policies that punished mixed-heritage children. Colonial officials attempted to use the legal system to restrict people of mixed ancestry, Africans, and Native Americans in bondage. These efforts supported the ideology of hypodescent, where children of mixed lineage are relegated more closely to the position of their socially inferior parentage. However, from the 1660s through the 1680s, these laws were unevenly enforced, and mixture increased with the growth of African slaves imported into the region. While many mulattoes were enslaved during this period, others were able to rely on their European heritage or racial whiteness. This allowed them to gain or maintain freedom for themselves and their families, before Virginia and Maryland institutionalized greater restrictions in the 1690s.

Read or purchase the article here.

A Study of the Wyoming Miscegenation Statutes

Wyoming Law Journal
Volume 10, Number 2 (1956)
pages 131-138

William E. Foster

The first ban on interracial marriage was passed in Maryland in 1661.¹ Since that time, forty states have followed with statutory bans on interracial marriages.² Twenty-nine states still have such prohibitions.³ Six of these states have constitutional bans as well as statutory provisions prohibiting such marriages.⁴ However, Iowa, Kansas, Maine, Massachusetts, Michigan, New Mexico, Ohio, Pennsylvania, Rhode Island, and Washington have repealed the miscegenation statutes which were once in effect in those states;⁵ and the Supreme Court of California has held its statute unconstitutional.⁶ While all twenty-nine states which have miscegenation statutes have provisions barring marriage of a White to a Negro,⁷ twelve states also have provisions which would bar marriage of Whites to various classifications of Asiatics.⁸ Three states in their statutes bar marriages of Whites to “Africans,” and have no explicit mention of Negroes;⁹ this type of statute would technically apply to the Dutch Afrikanders as well as to the Negro.¹⁰…

…The Wyoming miscegenation law is composed of two sections.¹⁸ The first, section 50-108, will be referred to as the prohibition section, and the second, section 50-109, will be referred to as the enforcement section. These statutes are both derived from one Act, chapter 57 of the Wyoming Session Laws of 1913, which was originally introduced as House Bill 153 of that year and was passed February 22, 1913, to take effect immediately upon its passage.¹⁹ The present statutes are unchanged from their original form. The Wyoming prohibition section reads: All marriages of white persons with Negroes, Mulattoes, Mongolians or Malays hereafter contracted in the state of Wyoming are and shall be illegal and void.²⁰

And the Wyoming enforcement section is:

Whosoever shall knowingly contract marriage in fact contrary to the prohibitions in the preceding section, and whosoever shall knowingly solemnize any such marriage shall be deemed guilty of a misdemeanor, and upon being convicted thereof, shall lie punished by a fine of not less than one hundred dollars, nor more than one thousand dollars, or imprisonment of not less than one year nor more than five years, or both, at the discretion of the court which shall try the cause.²¹

The Wyoming prohibition provision is characterized by its brevity; evidently the legislature did not see fit to define further any of the classifications set forth. Nor have there been any Wyoming cases dealing with racial intermarriages or interpreting this statute. However, when the Wyoming courts first deal with this problem, they will be faced with the formidable question of interpreting the prohibition provision. The very brevity of the statute gives rise to the largest problem-who comes within the prohibition of the statute?…

Read the entire article here.

Faculty Enrichment Lecture – Tanya K. Hernandez, “Multiracials and Civil Rights”

RLL Faculty Lounge
Beverly Rogers Literature and Law Building
University of Nevada, Las Vegas
2019-01-28, 12:00-13:30 PST (Local Time)

Tanya Katerí Hernández, is the Archibald R. Murray Professor of Law at Fordham University School of Law, where she teaches Anti-Discrimination Law, Comparative Employment Discrimination, Critical Race Theory, The Science of Implicit Bias and the Law: New Pathways to Social Justice, and Trusts & Wills. She received her A.B. from Brown University, and her J.D. from Yale Law School, where she served as Note Topics Editor of the Yale Law Journal.

Professor Hernández, is an internationally recognized comparative race law expert and Fulbright Scholar who has visited at the Université Paris Ouest Nanterre La Défense, in Paris and the University of the West Indies Law School, in Trinidad. She has previously served as a Law and Public Policy Affairs Fellow at Princeton University, a Faculty Fellow at the Institute for Research on Women at Rutgers University; a Non-resident Faculty Fellow at the Fred T. Korematsu Center for Law and Equality, and as an Independent Scholar in Residence at the Schomburg Center for Research in Black Culture. Professor Hernández is a Fellow of the American Bar Foundation, the American Law Institute, and the Academia Puertorriqueña de Jurisprudencia y Legislación. Hispanic Business Magazine selected her as one of the 100 Most Influential Hispanics of 2007. Professor Hernández serves on the editorial boards of the Revista Brasileira de Direito e Justiça/Brazilian Journal of Law and Justice, and the Latino Studies Journal published by Palgrave-Macmillian Press.

Professor Hernández’s scholarly interest is in the study of comparative race relations and anti-discrimination law, and her work in that area has been published in numerous university law reviews like Cornell, Harvard, N.Y.U., U.C. Berkeley, Yale and in news outlets like the New York Times, among other publications including her book Racial Subordination in Latin America: The Role of the State, Customary Law and the New Civil Rights Response (including Spanish and Portuguese translation editions). Her most recent publication is the book “Multracials and Civil Rights: Mixed-Race Stories of Discrimination.”

For more information, click here.

This edition: Moiya McTier, Mekita Rivas and Tanya Hernandez

Shades of U.S.
CUNY TV
The City University of New York
Original tape date: 2018-10-19
First aired: 2019-01-17

From a cabin in the woods without running water to astronomy Ph.D. candidate, Moiya McTier uses her platform to advocate for women of color in the sciences. Then, growing up Filipina and Mexican in Nebraska could be confusing, but Mekita Rivas finds her style as a fashion journalist. And last, Hell’s Kitchen-bred Tanya Hernández knows discrimination first hand, so she builds a legal career fighting it.

Guest List

• Tanya Hernández Professor of Law, Fordham University [and author of Multiracials and Civil Rights: Mixed-Race Stories of Discrimination]
• Moiya McTier PhD Candidate, Columbia University
• Mekita Rivas Freelance Writer

Watch the entire episode (00:26:46) here.

Partus sequitur ventrem: Law, Race, and Reproduction in Colonial Slavery

Small Axe: A Caribbean Journal of Criticism
Volume 22, Number 1 (55) (2018-03-01)
pages 1-17
DOI: 10.1215/07990537-4378888

Jennifer L. Morgan, Professor Of Social And Cultural Analysis & History
New York University

From the moment of its introduction into the Atlantic world, hereditary racial slavery depended on an understanding that enslaved women’s reproductive lives would be tethered to the institution of slavery. At the same time, few colonial slave codes explicitly defined the status of these children. This essay explores English slave codes regarding reproduction under slavery alongside the experience of reproduction to suggest that legislative silences are not the final word on race and reproduction. The presumption that their children would also be enslaved produced a visceral understanding of early modern racial formations for enslaved women. Using a seventeenth-century Virginia slave code as its anchor, this essay explores the explicit and implicit consequences of slaveowners’ efforts to control enslaved women’s reproductive lives.

Whereas some doubts have arisen whether children got by any Englishman upon a negro woman shall be slave or free, Be it therefore enacted and declared by this present grand assembly, that all children borne in this country shall be held bond or free only according to the condition of the mother—Partus Sequitur Ventrem. And that if any Christian shall commit fornication with a negro man or woman, hee or shee soe offending shall pay double the fines imposed by the former act. —Laws of Virginia, 1662 Act XII; Latin added by William Henig, The Statutes at Large, 1819

Atlantic slavery rested upon a notion of heritability. It thus relied on a reproductive logic that was inseparable from the explanatory power of race. As a result, women and their experiences of enslavement shed critical light on what it meant to be enslaved or free in the early modern Atlantic world. Regardless of the rate of reproduction among the enslaved—which remained low in all early American slave societies—the ideological solidity of those slave societies needed reproducing women. Building a system of racial slavery on the notion of heritability did not require the presence of natural population growth among the enslaved, but it did require a clear understanding that enslaved women gave birth to enslaved children. Resituating heritability was key in the practice of an enslavement that systematically alienated the enslaved from their kin and their lineage. Enslaved people had to be understood as dispossessed, outside of the normal networks of family and community, to justify the practice of mass enslavement.

As this essay will argue, enslaved women’s maternal possibilities became a crucial vehicle by which racial meaning was concretized—and it did so long before legislators indexed such possibilities into law. Further, by centering the women whose reproductive lives were at issue, I argue that enslaved people best understood the theory and praxis of racial slavery. The violence done when economic structures supersede kinship, and when enslaveability displaces maternity, is longstanding. There are moments when recognition of that agony of dispossession becomes clear.¹ So rather than an inquiry into legal history, here I argue that in the sixteenth- and seventeenth-century English Atlantic world, women navigated the dawning recognition that their reproductive lives would be the evidence of racialized dispossession. Enslaved mothers were enmeshed in the foundational metalanguages of early modern Atlantic ideas of slavery, freedom, and racial colonialism.²…

Read the entire article in PDF or HTML format.

Congress votes to end blood quantum requirement, applies to five tribes

KFOR-TV
Oklahoma City, Oklahoma
2018-12-26

OKLAHOMA CITY — A bill ending a blood quantum requirement awaits President Donald Trump’s signature after it unanimously passed the U.S. House and Senate.

HR2606, also known as the Stigler Act Amendments of 2018, was authored by Congressman Tom Cole (OK-04) and co-sponsored by Congressman Markwayne Mullin (OK-02). The legislation amends a 1947 law and would remove the one-half degree Native American blood quantum restriction for holders of tribal allotment land.

The legislation specifically impacts citizens of five Oklahoma tribes: the Chickasaw, Cherokee, Muscogee (Creek), Choctaw and the Seminole nations…

Read the entire story here.

Tanya K. Hernández, “Multiracials and Civil Rights: Mixed-Race Stories of Discrimination”

Center for the Study of Race and Ethnicity in America
Brown University, Providence, Rhode Island
2018-12-06 (Recorded on 2018-10-25)

Tanya K. Hernández, Archibald R. Murray Professor of Law
Fordham University School of Law, New York New York

In her new book “Multiracials and Civil Rights: Mixed-Race Stories of Discrimination,” Professor Tanya Katerí Hernández explores the question of how to pursue racial equality in a growing multiracial world. The growth of a mixed-race population has led some commentators to proclaim that multiracial discrimination is distinct in nature from the racial discrimination that non-multiracial persons experience, and that as a consequence a whole new approach to civil rights law is required. Hernández describes her own experience as an Afro-Latina mixed-race person and then shares how she tracked down the court case narratives of multiracial discrimination and the story of racial privilege they revealed. The stories she uncovered are especially timely. Coming at a time when explicit racism is resurfacing, Hernández’s look at multiracial discrimination cases is essential for fortifying the focus of civil rights law on racial privilege and the lingering legacy of bias against non-whites, and has much to teach us about how to move towards a more egalitarian society.

Court declares one must “look like an African descendant in the eyes of the average man” to qualify for affirmative action, rejecting another case of a white student “passing” for black

Black Women of Brazil
2018-11-12

Marques Travae, Creator and Editor

One of numerous examples of fraud, Vinícius Loures defined himself as black to attain access to a Medicine course at the Universidade Federal de Minas Gerais.

Court declares one must “look like an African descendant in the eyes of the average man” to qualify for affirmative action, rejecting another case of a white student “passing” for black

In a recent decision that will have huge repercussions on persons who attempt to obtain access to certain jobs and vacancies in universities, a panel upheld a policy that defined that for anyone wishing to qualify through affirmative action, it is not enough that said person be of African descent, but rather must look like an African descendant in the eyes of the average man. This was an argument I made several months ago. A little background here.

Due to the lack of diversity on Brazil’s college and university campuses, the nation began to experiment with affirmative action policies nearly 20 years ago. The discussion on the policies generated debates on race in the public sphere that had never happened to such a degree in Brazil. Sure, the topic of race in Brazil had been studied in academia for decades, but never had the general public had such public debates on the topic. Since the first half of the 20th century, the belief system in Brazil had been that Brazil was a “racial democracy” in which any person, regardless of their racial appearance had an equal opportunity to attain a middle class lifestyle. In fact, because of widespread miscegenation, it was even difficult to determine what race the average Brazilian was anyway…

Read the entire article here

The DNA Industry and the Disappearing Indian

TomDispatch.com: A regular antidote to the mainstream media
2018-11-29

Aviva Chomsky, Professor of History; Coordinator of Latin American, Latino and Caribbean Studies
Salem State University, Salem, Massachusetts

DNA, Race, and Native Rights

Amid the barrage of racist, anti-immigrant, and other attacks launched by President Trump and his administration in recent months, a series of little noted steps have threatened Native American land rights and sovereignty. Such attacks have focused on tribal sovereignty, the Indian Child Welfare Act (ICWA), and the voting rights of Native Americans, and they have come from Washington, the courts, and a state legislature. What they share is a single conceptual framework: the idea that the long history that has shaped U.S.-Native American relations has no relevance to today’s realities.

Meanwhile, in an apparently unrelated event, Senator Elizabeth Warren, egged on by Donald Trump’s “Pocahontas” taunts and his mocking of her claims to native ancestry, triumphantly touted her DNA results to “prove” her Native American heritage. In turning to the burgeoning, for-profit DNA industry, however, she implicitly lent her progressive weight to claims about race and identity that go hand in hand with moves to undermine Native sovereignty.

The DNA industry has, in fact, found a way to profit from reviving and modernizing antiquated ideas about the biological origins of race and repackaging them in a cheerful, Disneyfied wrapping. While it’s true that the it’s-a-small-world-after-all multiculturalism of the new racial science rejects nineteenth-century scientific racism and Social Darwinism, it is offering a twenty-first-century version of pseudoscience that once again reduces race to a matter of genetics and origins. In the process, the corporate-promoted ancestry fad conveniently manages to erase the histories of conquest, colonization, and exploitation that created not just racial inequality but race itself as a crucial category in the modern world.

Today’s policy attacks on Native rights reproduce the same misunderstandings of race that the DNA industry is now so assiduously promoting. If Native Americans are reduced to little more than another genetic variation, there is no need for laws that acknowledge their land rights, treaty rights, and sovereignty. Nor must any thought be given to how to compensate for past harms, not to speak of the present ones that still structure their realities. A genetic understanding of race distorts such policies into unfair “privileges” offered to a racially defined group and so “discrimination” against non-Natives. This is precisely the logic behind recent rulings that have denied Mashpee tribal land rights in Massachusetts, dismantled the Indian Child Welfare Act (a law aimed at preventing the removal of Native American children from their families or communities), and attempted to suppress Native voting rights in North Dakota…

Read the entire article here.

From Color Line to Color Chart: Racism and Colorism in the New Century

Berkeley Journal of African-American Law & Policy
Volume 10, Issue 1 (January 2008)
pages 52-69
DOI: 10.15779/Z380C9X

Angela P. Harris, Distinguished Professor of Law
University of California, Davis

When my sister graduated from college in the mid-1980s with a degree in musical theater she moved to Chicago with her new husband in search of work in television commercials and the performing arts. To her frustration and dismay, however, despite her good looks, acting ability, and musical talent, she was rejected in audition after audition. Getting rejected for arbitrary reasons or for no reason, of course, is just life in the entertainment industry. After a while, though, my sister began to hear some repetition in the rejections she received. “You don’t look black enough,” is the apology she would get.

My sister is very fair-skinned, with hair that streaks blonde in the summer. Yet, at least to discerning eyes, she can’t “pass” for white: her features, her creamy skin, and her “African booty” distinguish her from the Scandinavian descent blondes that populate beer commercials and musical revues. For casting directors, then, she fell into a limbo: too white to play black, but too black to play white.

Today, my sister has a recurring role on a children’s television show (she’s Prudence the Musical Genie on “Jack’s Big Show,” produced by Nickelodeon, if you want to see her), and fortunes are changing not just for her but for many women and men in the performing arts who “read” as racially ambiguous, or racially “mixed.” To put it bluntly, the ambiguous/mixed look is now “hot.” Celebrities such as Tiger Woods, Mariah Carey, and The Rock discuss their mixed background with pride;’ television, catalog, magazine, and newspaper advertising is full of adorable light-brown children with flowing locks that are not quite nappy, not quite straight; and mixed-race.

Politician Barack Obama finds himself able to appeal to both white and African-American audiences. A recent essay predicts that in the future the most desirable aesthetic both in the United States and in Latin America will not be to look “white,” but to look café con crema.

Not only the aesthetics but the ideologies of race are undergoing a shift. Tanya Hernandez, who writes in the field of comparative race and racism, argues that the United States is poised to adopt the “multiracial matrix” that characterizes state and civil society in Cuba, Brazil, and Puerto Rico. Hernandez describes this matrix as composed of four beliefs:

(1) [R]acial mixture and diverse racial demography will resolve racial problems by transcending race; (2) fluid racial identity is an indicator of a form of racial progress that deconstructs the stability of racial categories and thereby brings society closer to a colorblind utopia; (3) racism is solely a phenomenon of aberrant racist individuals who inappropriately express their prejudice; and (4) discussing race or focusing on race is itself racist because it disrupts the harmony of race neutrality.

Judging from these indicators, perhaps the dream of finally achieving racial harmony through racial intermixing is about to become real. Hernandez and some other scholars, however, are worried rather than pleased about the emergence of the multiracial matrix. Some worry that despite the emergence of an anti-race public discourse, racism has not disappeared, but instead has retreated into individual cognitive processing systems, where it is inaccessible to legal intent tests (and, often, the individual’s own conscious mind), yet continues to shape the life chances of persons according to race. In this view, what is disappearing is not racism but rather our ability to talk about it. Others argue that in the new millennium traditional racism is indeed disappearing, but only to be slowly supplanted by colorism, in which the color of a person’s skin will take on more importance in determining how she is treated by others than her ancestry. In this Article, I speculate about the implications of this second possibility.

In Part I, I survey the critical race theory literature addressing colorism. This literature has examined how colorism fits (or doesn’t fit) into the existing apparatus of anti-discrimination law in the United States, and – as in Hernandez’s work – the relationship between colorism in the United States and in other countries. In Part II, I draw on a different strand of critical race theory literature to argue that the work of the performativity school offers a way to conceptually link colorism to more familiar forms of racism. In Part III, I speculate about the possible effects on society and anti-discrimination law of a drift away from ancestry as an important component of assigned race and towards a greater focus on color…

Read the entire article here.