Mixed Race Studies

Tribal Rights vs. Racial Justice: Was the Cherokee Nation’s expulsion of black Freedmen an act of tribal sovereignty or of racial discrimination?

The New York Times
Room for Debate
2011-09-15

Kevin Maillard, Associate Professor of Law
Syracuse University

Matthew L. M. Fletcher, Professor of Law
Michigan State University

Cara Cowan-Watts, Acting Speaker
Cherokee Nation Tribal Council

Rose Cuison Villazor, Associate Professor of Law
Hofstra University

Heather Williams, Cherokee citizen and Freedman Descendent
Cherokee Nation Entertainment Cultural Tourism Department

Carla D. Pratt, Professor of Law and Associate Dean of Academic Affairs
Pennsylvania State University, Dickinson School of Law

Tiya Miles, Professor of History and Chair of the Department of Afro-American and African Studies
University of Michigan

Joanne Barker (Lenape), Associate Professor of American Indian studies
San Francisco State University

Introduction

When the Cherokee were relocated from the South to present-day Oklahoma in the 1830s, their black slaves were moved with them. Though an 1866 treaty gave the descendants of the slaves full rights as tribal citizens, regardless of ancestry, the Cherokee Nation has tried to expel them because they lack “Indian blood.”

The battle has been long fought. A recent ruling by the Cherokee Supreme Court upheld the tribe’s right to oust 2,800 Freedmen, as they are known, and cut off their health care, food stipends and other aid in the process.

But federal officials told the tribe that they would not recognize the results of a tribal election later this month if the citizenship of the black members was not restored. Faced with a cutoff of federal aid, a tribal commission this week offered the Freedmen provisional ballots, a half-step denounced by the black members.

Is the effort to expel of people of African descent from Indian tribes an exercise of tribal sovereignty, as tribal leaders claim, or a reversion to Jim Crow, as the Freedmen argue? Kevin Noble Maillard, a professor of law at Syracuse University and a member of the Seminole Nation of Oklahoma, organized this discussion of the issue.

Read the entire debate here.

Tribal Kulturkampf: The Role of Race Ideology in Constructing Native American Identity

Seton Hall Law Review
Volume 35, Number 4 (2005)
pages 1241-1260

Carla D. Pratt, Associate Professor of Law
Pennsylvania State University

I. INTRODUCTION

“Law is embroiled in the politics of identity. It names parties, defines their speech and conduct, and assigns their rights and duties. Its judgments declare, enjoin, and award the tangible and intangible benefits of race and racial privilege.” Law has been deeply involved in the politics of defining racial identity. The rule of hypo-descent, also known as the “one-drop rule,” was codified as law in many states in an effort to define the group of people who were black and therefore subject to the deprivation of liberty through the institution of slavery and later subject to social, economic, and educational subjugation through Jim Crow. Although the rule has been repealed from the statutory compilations of law in those states that once had such a rule, it continues to operate on a cognitive and cultural level in American law and society. On a social and cultural level, most Americans still perceive anyone with known African ancestry and the skin coloration, hair texture, or facial features that serve as evidence of African ancestry, to be “black” or African American.

Unbeknownst to many, the rule of hypo-descent still operates in law on a structural level, particularly with respect to federal Indian law and the law of some Native American tribes. Within some Native American tribes, the rule is still covertly operating to construct Native American identity. In the struggle to preserve their very existence, some Native American tribes have subscribed to the basic assumptions of the dominant culture, including the assumption that whiteness is to be prized and non-whiteness devalued on a scale relative to the degree of color of one’s skin, with blackness constituting the most devalued state of being.

Few extant cases are more illustrative of law embroiled in the politics of racial identity than the case of Davis v. United States, which the United States Supreme Court recently declined to review. Davis was brought by two groups of people who are members of a federally recognized Indian tribe called the Seminole Nation of Oklahoma. These groups, or “bands” of people, as they are commonly referred to in Indian discourse, are known as the Dosar-Barkus and Bruner bands of the Seminole Nation. They brought a lawsuit in federal court seeking to obtain treatment equal in nature and degree to the treatment received by other members of their tribe. Specifically, they sought to participate in certain tribal programs that are funded by a judgment paid by the United States for tribal lands taken by the United States government in 1823 when the tribe was in Florida. The federal courts ultimately refused to allow these bands of Seminoles to have their case heard on the merits by holding that Rule 19 of the Federal Rules of Civil Procedure precluded the hearing of the case because the tribe was an indispensable party which could not be joined in the action due to its sovereign immunity. The Seminole tribe’s culture war over the Dosar-Barkus and Bruner bands of Seminoles has even resulted in tribal efforts to amend the Seminole constitution in a manner that would exclude these Seminoles from tribal membership. Why are these bands of Indians treated differently from the remainder of their tribe? Why is their own tribe so hostile to them? What separates them from the majority of their tribe? They are black.

This Essay explores how law has utilized the master narrative of white supremacy and black inferiority to construct Native American identity in a way that presently enforces the rule of hypo-descent. I must concede that while the Seminole Nation or “tribe” is not culturally representative of the diversity of Indian Nations or tribes in the United States, an inquiry into the experience of the Seminoles provides a basis for identifying how the master narrative of white supremacy and black inferiority is used to construct Native American identity, and how the construction of Native American identity in this fashion serves to further advance white supremacy…

Read the entire essay here.

Loving Indian Style: Maintaining Racial Caste and Tribal Sovereignty Through Sexual Assimilation

Wisconsin Law Review
Volume 2007, Number 2 (2007-01-12)
pages 410-461

Carla D. Pratt, Associate Dean for Academic Affairs and Educational Equity; Nancy J. LaMont Faculty Scholar and Professor of Law
Pennsylvania State University

I. Introduction

When the United States Supreme Court struck down Virginia’s miscegenation statute forty years ago, everyone understood that the Court was eroding the formal barrier between blacks and whites. Although there has been healthy disagreement about Loving v. Virginia, including whether it provides the precedent for legal endorsement of same-sex marriage, scholars generally agree that the Virginia statute which Loving struck down was not a law proscribing miscegenation generally, but merely prohibiting miscegenation with a white person. Commentators have generally recognized the Virginia legislators’ choice to structure the law in this way as being aimed at preserving white racial purity and ensuring that white women were reserved exclusively for white men. Ostensibly the law was insouciant regarding the intimate relations of people of color, but a closer look betrays its impact on interracial relations between people of color.

Further, state miscegenation laws that ultimately permitted whites to marry Indians aided the assimilation of Indians into mainstream white America by operating as a form of racial rehabilitation. Indian assimilation, however, required more than Indians intermarrying with whites; it required the total indoctrination of Indians into the system of white supremacy. This meant that Indians needed to adopt white sexual mores, including the aversion to race-mixing with blacks.

This Article calls this process—which operated as the pathway to Indian acceptance in American society and privileged Indians over blacks—“sexual assimilation.” While sexual assimilation was aimed at cultural genocide from the federal perspective, it paradoxically played a role in preventing Indian cultural extinction by helping to maintain tribal sovereignty.

Scholars have generally characterized Loving as a case about the line separating whites from blacks. Within the subtext of Loving, however, lies a narrative about the line separating Indians from blacks. Virginia’s miscegenation law employed a eugenics-based racial classification to legally construct Mildred Loving as “Negro,” but her true racial identity contained a Cherokee Indian component. Mildred was herself a product of race mixing. Furthermore, while Mildred’s mixed racial identity may lead one to believe that—as some scholars have suggested—Indians intermarried with blacks freely and frequently, the miscegenation laws of several tribes impart a counternarrative that portrays some Indian communities as viewing marriage to blacks as taboo.

Despite all of the discussion about miscegenation laws that Loving has generated, there has been little discussion about the American Indian Nations’s enactment of miscegenation laws. Perhaps this paucity of literature is due to the fact that Loving had no precedential effect in tribal miscegenation law since tribes are sovereigns that are, in many respects, independent of federal regulation. Nonetheless, an examination of Loving is incomplete without an examination of the role that state miscegenation laws played in Indian communities in the scheme to maintain the boundaries of racial categories and the struggle to maintain tribal sovereignty. An examination of tribal miscegenation law yields a better understanding of how state miscegenation laws affected nonblack people of color such as Native Americans, who were often political casualties of state and federal laws designed with a black-white paradigm in mind. In fact, Native Americans found themselves wedged in the middle of the black-white models of racial subordination and ultimately adjusted to the existing racial hierarchy through social and legal assimilation.

The fact that several Indian tribes adopted miscegenation laws similar to the law struck down in Loving raises important questions. Why did these particular tribes adopt miscegenation laws? What role did the adoption of miscegenation laws play in the tribe and its interaction with state and federal governments? What role did tribal miscegenation laws play in the acculturation of Indians, and what legacy have these laws left for the tribes’ contemporary understanding of self?

This Article examines tribal miscegenation laws in an effort to locate some potential answers to these questions. This Article is not proffered as a definitive answer to the questions posed, but as a contribution to the emerging dialogue aimed at developing a collective understanding of the social, historical, and political context in which such laws arose and operated. This Article deviates from the traditional binary paradigm of exploring how miscegenation laws affected blacks and whites and explores how miscegenation laws affected nonblack people of color and their relations with blacks. Thus, it reveals that the statute at issue in Loving and similar race-preserving laws indirectly regulated interracial relations between certain nonwhite groups.

Part II of this Article explores the substance of tribal miscegenation laws—and their legal and political context—in an effort to better understand why tribes adopted such racially isolating laws. Part III examines how state miscegenation laws affected Native Americans as well as the role of tribal miscegenation laws in maintaining individual and communal Indian identity and tribal sovereignty. Part IV questions whether tribal miscegenation laws, despite their repeal, help explain contemporary tribal conflicts between blacks and Indians. Part V concludes that extant legal disputes between the tribes and African Americans who claim membership in those tribes are derivatives of the project of sexual assimilation of Indian people. This suggests that both the tribes and African Americans who claim a Native American identity could benefit from a better understanding of the historical sociolegal context in which contemporary notions of Indian identity are rooted…

Read the entire article here.