Mixed Race Studies

The Trouble with Transcendence: Is Defying the Gender Binary the New Racial Passing?

Nursing Clio: Because the Personal is Historical
2014-01-21

Mallory Nicole Davis
University of Oregon

In 2010, Thomas Araguz III, a Texas firefighter died on the job, leaving behind his two children and transgender wife, Nikki.[1] The couple was legally married because although the state of Texas only recognizes heterosexual marriages, the state will validate a transgender union if the trans partner’s identification documents dictate that s/he is the opposite legal sex of the spouse.[2] However, when Nikki sought survivor benefits after her husband’s unexpected death, Thomas’ family launched a case against Nikki, stating that Thomas did not know his wife was transgender. The suit argued that Nikki wrongfully deceived her husband, while lobbying for the nullification of their marriage and subsequently, Nikki’s request for spousal benefits. The case was complicated further by the prosecuting attorney’s interrogation of a deposition taken from Thomas in a separate court case—a battle over custody of his two sons with his ex-wife—in which he stated that he did not know that Nikki was transgender.[3] In response to the scrutinizing of her late husband’s statement, Nikki insisted that Thomas lied during his deposition and pretended to be unaware of her transgender status in order maintain custody of his two small children. Nikki stated, “At the time, Thomas and I thought it was in the best interest of our children to lie. They were the center of (our) lives”.[4] Whether Nikki neglected to disclose her trans identity to her husband or that the couple collectively decided to lie to the court during their custody case for the sake of their children, deception surrounding Nikki’s trans status is at the center of this legal case; and undoubtedly, her credibility will be diminished regardless of how the court decides…

…Passing is a term typically used to denote a person’s ability to move imperceptibly across racial lines, though the word is equally fitting to describe a trans* person’s ability to transgress the gender binary. Nikki’s perceived deceptions echoes the case of Alice and Leonard Rhinelander, an interracial couple who were married in 1924 who made national headlines because Alice, a light-skinned African-American woman, passed for white and married into the affluent Rhinelander family.[5] When negative press threatened to tarnish the Rhinelander family name, Leonard disappeared without warning and filed for an annulment, claiming that Alice misled him by presenting herself as a white woman. Ultimately, it was proved that Leonard had, in fact, known that Alice was African-American, and Alice counter-sued Leonard for abandonment. Although the Rhinelander family ended up offering Alice a monetary settlement upon her agreement to a divorce, the character attacks launched on Alice and her family, based upon her alleged racial deception were devastating. And like Nikki, Alice’s identity came under fire in a torrential court case only after the transcendent nature of her identity proved threatening to the family of her husband…

Read the entire article here.

What Comes Naturally: A Racially Inclusive Look at Miscegenation Law

Frontiers: A Journal of Women Studies
Volume 31, Number 3, 2010
pages 15-21
DOI: 10.1353/fro.2010.0020

Jacki Thompson Rand, Professor of History; American Indian and Native Studies
University of Iowa

In What Comes Naturally Peggy Pascoe interrogates the U.S. racial regime through a study of civil marriage and miscegenation law. Her admirable work traces the development of legislation and court decisions about mixed marriage between White settlers and African Americans, Latinos and Latinas, Asians, and American Indians. Bans against mixed marriages, or miscegenation, between White men and women of color, Pascoe argues, served to protect White supremacy and heteronormative patriarchy. By maintaining boundaries between the races, and material consequences that favored men in land disputes and White relatives in estate disputes, for example, White men’s economic and social positions were reinforced while women’s positions were undermined. Pascoe includes American Indians in her study because their lands, unique relationship with the federal government, and kinship systems presented complications not found in other cases. Pascoe also briefly mentions tribal miscegenation laws among the Choctaws, Chickasaws, Cherokees, and Creeks.

Pascoe’s book and a recent special issue of the journal Frontiers, on interracial marriage and eighteenth- and nineteenth-century North American Indians, White settlers, and African Americans, complement each other in some ways. French fur traders in the Northeast and Great Lakes region and Spanish and Mexicans in the Southwest mixed with Native women long before the creation of the United States. The French were early astute observers of Native people and soon realized the crucial role kinship played in providing access to prime beaver-trapping grounds along rivers. French men married into Native groups to enhance their trade. By the nineteenth century White American men also sought Native women who held land as a way of gaining access to resources. The federal government looked upon such unions as a means to facilitate Indian acculturation and assimilation into White society, even well into the twentieth century. In many instances Native families saw the marriage of their daughters to White men as a means to enhance their access to trade goods and to a more secure life.

Pascoe treats miscegenation law that covered American Indians primarily in the case of Oregon. In fact, miscegenation law evolved from initially targeting White and African American unions to include White unions with other races, including American Indians. The creation and enforcement of laws that pertained to marriages with Native Americans, Pascoe notes, seemed to coincide with external or individual circumstances where the acquisition or loss of land was at stake. Like the unions of French men and Native women, many marriages followed the custom of the country, where the partners were bound to each other outside of civil law. In the mid-nineteenth century the Oregon Territorial Supreme Court heard a case to determine whether such marriages were legal under territorial law. Oregon settler land claims at that time were unstable, so it is not surprising that the court and the U.S. Supreme Court upheld the custom of the country. While this chapter of American Indian history diverged from the history of barring mixed marriages, Pascoe demonstrates that the tolerance of mixed marriage between White men and Indian women also secured White male patriarchy. It was a variation on the theme of White supremacy.

Like settler regimes elsewhere White American society viewed race through a biological lens that assessed parentage, phenotype, and blood quantum. In the nineteenth and early twentieth centuries both the American and the Australian governments encouraged intermarriage to Whiten and eventually erase indigenous populations. The coexistence of miscegenation laws that pertained to Native peoples and assimilation proponents of interracial marriage arose from conflicting impulses. On one hand, intermarriage was objectionable on the grounds Pascoe depicts in her book: the progeny of mixed marriages challenged racial regimes, White supremacy, and White male privilege. But the federal government and settler society’s twin desires to avert an unaffordable war with Indians and to expropriate lands in Native possession weakened the resolve to bar mixed marriages. In the Frontiers special issue Cathleen Cahill explores the federal Indian Service as a site of applied assimilation policy where marriages between Whites and American Indians were made possible by putting numbers of White women in proximity to eligible Native men.

In the same period intermarriage could also serve as a vehicle for the expropriation of Native…

Concubinage Law Reaches Negro Only

Lafayette Adviser
Lafayette, Louisiana
Friday, 1910-04-29
page 1, columns 3-4
Source: Chronicling America: Historic American Newspapers (Library of Congress)

By Vote of 3 to 2 Supreme Court Upholds Decision of the Lower Court.

LOUISIANA STATUTE HELD TO BE OF LIMITED SCOPE.

Mulattoes, Quadroons and Octaroons Not  included—Opinion Read by Justice Provosty.

Dally States.

Justices Nicholls and Land dissenting, the State Supreme Court Monday handed down a decision sustaining the decision of Judge Chretien, in the case of the State vs. Octave Treadway and Josephine Treadway, charged with violating the law prohibiting concubinage. In the Criminal Court the defense maintained that Josephine Treadway could not be considered a “colored person,” because she is an octoroon. It was pointed out that the Supreme Court had already decided that an octaroon is not a colored person in the accepted sense of the term as employed years ago. Judge Chretien sustained this argument, and dismissed the accused of the charge of concubinage. Both accused came to New Orleans from Plaquemine Parish.

Associate Justice O. O. Provosty, who was the organ of the Court, says in part:

“This sole question is whether an octoroon is ‘a person of the negro or black race’ within the meaning of the statute.”

Scientifically or ethnologically, a person is Caucasian or negro in the same proportion in which the two strains of blood are mixed in his veins; and therefore, scientifically or ethnologically, a person with seven-eighths white blood in his veins and one-eighth negro blood is seven-eighths white and one-eighth negro. But the words of a statute are not to be understood in their technical, but in their popular sense; and the prosecution contends that the popular meanings of the word negro includes an octoroon. The dictionaries show that the word negro does not include an octoroon within its meaning. In North Carolina a person who has one-sixteenth or more of African blood is a negro, but it gives as us authority for that statement the decision of the Supreme Court of the State, the Court having simply applied or enforced the following statute:

“All free persons descended from negro ancestors to the fourth generation inclusive, though one ancestor in each generation may have been a white person, shall be deemed free negroes and persons of mixed blood.”

The court points out the fact that the Louisiana statute does not define the word negro as including a person of mixed blood.  Had it done so there would, be an end of all questions. The prosecution contends that the word does not need to be defined in a statute; that popularly it has a definite well-known meaning.

The Court says: “There is a word in the English language which does express the meaning of a person of mixed negro and other blood, which has been coined for the very purpose of expressing that meaning, and because the word negro was not known to express it, and the need of a word to express it made itself imperatively felt. That word is the word ‘colored.’ The word ‘colored,’ in the United States at least, when used to designate the race of a person is unmistakable; it means a person of negro blood, pure or mixed, and the term applies no matter what may be the proportion of the mixture, so long as the negro blood is traceable. In our constitution and laws when it has become necessary to use a word comprehending within its meaning both negroes, properly so called, and persons of mixed blood, the term ‘colored’ has invariably been used.”

The court says there are no negroes who are not persons of color, but there are persons of color, who are not negroes. The term ‘color’ as applied to race, was given the meaning of the word negro for the very purpose of having in the language a term including within its meaning both persona of pure and of mixed blood; but the converse is not true.

The word negro was never adopted into the language for the purpose of designating persons of mixed blood. On the contrary, it was for the purpose and the sole purpose of expressing the meaning of persons of the pure race, and it can have now a different or more enlarged meaning only by wrenching it from its original meaning, as was done with the word “colored” and imparting to it a meaning different from that which it was intended to bear and has always borne in the language. The legislature might do this but the statute by which it did it would have authority only in Louisiana and the word negro would still continue to mean, the world over, outside of Louisiana, a person of the pure African race.

“We do not think,” says the court, “there could be any serious denial of the fact that in Louisiana the meaning of the words, mulatto, quadroon and octoroon are of a definite meaning as the words man or child, and that among educated people at least, they are as well and widely known, and we think that there can be no serious denial of the fact that in Louisiana and indeed throughout the United States, except on the Pacific slope, the word colored when applied to race, has the definite and well-known meaning of a person having negro blood in his veins. We think also that any candid mind must admit that the word ‘negro’ of itself unqualified, does not necessarily include within its meaning persons possessed of only an admixture of negro blood; notably those whose admixture is so slight that in their case even an expert can not be positive.”

Overturning Anti-Miscegenation Laws: News Media Coverage of the Lovings’ Legal Case Against the State of Virginia

Journal of Black Studies
Volume 43, Number 4 (May 2012)
pages 427-443
DOI: 10.1177/0021934711428070

Jennifer Hoewe
College of Communications
Pennsylvania State University, University Park

Geri Alumit Zeldes, Associate Professor
School of Journalism
Michigan State University

This study fills a gap in scholarship by exploring historical news coverage of interracial relationships. It examines coverage by The New York Times, Washington Post and Times-Herald, and Chicago Tribune of the progression of the landmark civil rights case of Loving v. Virginia, in which the Supreme Court overturned Virginia’s anti-miscegenation law, which prohibited marriage between any White and non-White person. An analysis of the frames and sources used in these publications’ news stories about the case indicate all three publications’ coverage favored the Lovings.

Read or purchase the article here.

Veteran Served as a White, Convicted of Miscegenation

The Milwaukee Journal
Monday, 1948-12-20
page 20, columns 2 & 3

Davis Knight —AP Wirephoto

Ellisville, Miss.—(AP)—A young veteran who served in the navy as a white man and later married a white woman has been convicted of miscegenation and sentenced to five years in prison.

Dist. Atty Paul Swartzfager said the conviction Saturday of 23 year old Davis Knight was believed to be the first under the state’s miscegenation law, in force since reconstruction days. The law forbids marriage or cohabitation between white persons and those with at least one-eighth Negro or Mongolian blood. Conviction automatically cancels the marriage.

Knight whose marriage was performed in April, 1946, by the mayor of this south Mississippi town of 3,000, filed notice of appeal. Knight was arrested when “people started talking” and told his employer in Laurel that he was a Negro. Quitman Ross, his attorney, explained.

The main issue in the trial was the ancestry of Knight’s great-grand-mother, who was known as Rachel and who lived on the plantation of Capt. Newt Knight a picturesque character in Mississippi history. Rachel the state contended, was a Negro, and witnesses were introduced who testified that she and her children were known as Negroes. Among these witnesses was Tom Knight, 89 year old son of Capt. Knight who said that the young navy veteran’s grandfather was a son of Rachel.

Defense witnesses testified that they believed Rachel was a Cherokee Indian.

Swartzfager said no charges were planned against the white woman who married Knight under the impression that he was of all white blood.

Knight was drafted as a white, man at Camp Shelby in 1943 and his discharge papers. Swartzfager said, listed him as white.

Note from Steven F. Riley: For more about the Knight family, please read Victoria E. Bynum’s superb monograph, The Free State of Jones: Mississippi’s Longest Civil War.

Struck by Lightning? Interracial Intimacy and Racial Justice

Human Rights Quarterly
Volume 25, Number 2, May 2003
pages 528-562
DOI: 10.1353/hrq.2003.0017

Kevin R. Johnson, Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies
University of California, Davis

Kristina L. Burrows

Rachel F. Moran, Interracial Intimacy: The Regulation of Race and Romance (Chicago and London: University of Chicago Press 2001), pp. xii, 271. Cloth, $30.

If true love is like lightning, what can romantic choice have to do with racial justice[?].

I. Introduction

Over the last decade, growing attention has been paid to the mixed race population in the United States. Much of the literature on the subject offers compelling stories of the life experiences of persons with African American and white parents. In addition, the controversy over the proper classification of mixed race people for Census 2000 attracted national attention.

Only recently has legal history scholarship begun to analyze the rich history of the legal regulation of racial mixture in the United States and its modern day repercussions. Breaking important new ground in this emerging field, Rachel Moran’s book Interracial Intimacy: The Regulation of Race and Romance represents the first comprehensive review of the intricacies of the law and policy of racial mixture, ambitiously surveying wide-ranging legal terrain from the anti-miscegenation laws to transracial adoption. By tackling a much-neglected topic that is central to a full appreciation of civil rights in the modern United States, Interracial Intimacy deserves attention and will likely serve as an influential guide to future research in the field.

As Interracial Intimacy unravels the law’s efforts to regulate and respond to intermarriage, it offers powerful evidence that race is a social and legal construct, a product of our collective mind rather than an immutable biological fact. But Moran goes well beyond that. She demonstrates how intermarriage is inextricably linked to the quest for racial justice. A central theme of Interracial Intimacy is that the prevailing racial segregation in the United States makes intermarriage far less likely than would be the case in an integrated society. The low rate of interracial relationships is a function of pervasive housing, school, and employment segregation, as well as the lack of racial diversity in higher education. Socioeconomic class disparities reflected in residential and employment patterns factor in as well, implicating the connection between race, class, and marriage.

Put simply, people are less likely to select mates of another race if they rarely meet them. Because Americans of different races continue to live separate daily lives, we should expect that people will continue to marry others of their own race. Moran’s reference to love striking “like lightning” makes love seem all the more romantic. However, as we all know, one’s location can affect whether he or she is hit by lightning. So too, location and geography matter for love and romance. The effect of location on love and romance is one of Interracial Intimacy’s powerful insights. Somewhat ironically, Moran proves that, at one level, the segregationists of the old South were entirely correct: segregation and “race mixing” indeed are—and always have been—deeply interrelated. As Gunnar Myrdal observed in his classic study of race relations in the United States, “[e]very single measure [of segregation] is defended as necessary to block ‘social equality’ which in its turn is held necessary to prevent ‘intermarriage.'”

One can only speculate why serious legal scholarship has failed for so long to analyze the connection between love, intimacy, and racial justice. In part, the failure may stem from the view that intensely private and personal decisions are immune from legal purview. By implicating issues of passion and eroticism, intimacy may appear to be beyond rational analysis. Moran’s book breaks the long silence in legal scholarship on this critically important topic.

Interracial Intimacy also identifies deeply perplexing questions worthy of further exploration. Notably, African Americans marry whites much less frequently than Asian Americans, Latina/os, and Native Americans do. Are these other minorities effectively “white,” or at least “whiter,” than African Americans? One can only wonder about the future of interracial marriage between African Americans and whites and what it portends for racial progress.

Ultimately, Interracial Intimacy leaves open whether optimism or pessimism is justified about black/white intermarriage in the next millennium and its impact on civil rights in the United States. In that way, the book proves…

Memoirs of Elleanor Eldridge

West Virginia University Press
December 2013
160 pages
Cloth ISBN: 978-1-935978-24-4
Paperback ISBN: 978-1-935978-23-7
ePub ISBN: 978-1-935978-25-1
PDF ISBN: 978-1-938228-64-3

Original Text by Frances Harriet Whipple (1805-1878) with Elleanor Eldridge (1794-1862)

Edited by:

Joycelyn K. Moody, Sue E. Denman Distinguished Chair in American Literature and Professor of English
University of Texas, San Antonio

Elleanor Eldridge, born of African and US indigenous descent in 1794, operated a lucrative domestic services business in nineteenth century Providence, Rhode Island. In defiance of her gender and racial background, she purchased land and built rental property from the wealth she gained as a business owner. In the 1830s, Eldridge was defrauded of her property by a white lender. In a series of common court cases as defendant and plaintiff, she managed to recover it through the Rhode Island judicial system. In order to raise funds to carry out this litigation, her memoir, which includes statements from employers endorsing her respectable character, was published in 1838. Frances Harriet Whipple, an aspiring white writer in Rhode Island, narrated and co-authored Eldridge’s story, expressing a proto-feminist outrage at the male “extortioners” who caused Eldridge’s loss and distress.

With the rarity of Eldridge’s material achievements aside, Memoirs of Elleanor Eldridge forms an exceptional antebellum biography, chronicling Eldridge’s life from her birth. Because of Eldridge’s exceptional life as a freeborn woman of color entrepreneur, it constitutes a counter-narrative to slave narratives of early 19th-century New England, changing the literary landscape of conventional American Renaissance studies and interpretations of American Transcendentalism.

With an introduction by Joycelyn K. Moody, this new edition contextualizes the extraordinary life of Elleanor Eldridge—from her acquisition of wealth and property to the publication of her biography and her legal struggles to regain stolen property. Because of her mixed-race identity, relative wealth, local and regional renown, and her efficacy in establishing a collective of white women patrons, this biography challenges typical African and indigenous women’s literary production of the early national period and resituates Elleanor Eldridge as an important cultural and historical figure of the nineteenth century.

Read the original text from 1838 here.

Legal Fictions: Constituting Race, Composing Literature

Duke University Press
January 2014
176 pages
3 photographs
Paperback ISBN: 978-0-8223-5595-3
Cloth ISBN: 978-0-8223-5581-6

Karla FC Holloway, James B. Duke Professor of English; Professor of Law; Professor of Women’s Studies
Duke University

In Legal Fictions, Karla FC Holloway both argues that U.S. racial identity is the creation of U.S. law and demonstrates how black authors of literary fiction have engaged with the law’s constructions of race since the era of slavery. Exploring the resonance between U.S. literature and U.S. jurisprudence, Holloway reveals Toni Morrison’s Beloved and Charles Johnson’s Middle Passage as stories about personhood and property, David Bradley’s The Chaneysville Incident and Ralph Ellison’s Invisible Man as structured by evidence law, and Nella Larsen’s Passing as intimately related to contract law. Holloway engages the intentional, contradictory, and capricious constructions of race embedded in the law with the same energy that she brings to her masterful interpretations of fiction by U.S. writers. Her readings shed new light on the many ways that black U.S. authors have reframed fundamental questions about racial identity, personhood, and the law from the nineteenth into the twenty-first centuries. Legal Fictions is a bold declaration that the black body is thoroughly bound by law and an unflinching look at the implications of that claim.

Table of Contents

• Preface
• Introduction: Bound by Law
  • Intimate Intersectionalities—Scalar Reflections
  • Public Fictions, Private Facts
  • Simile as Precedent
  • Property, Contract, and Evidentiary Values
• 1. The Claims of Property: On Being and Belonging
  • The Capital in Question
  • Imagined Liberalism
  • Mapping Racial Reason
  • Being in Place: Landscape, Never Inscape
• 2. Bodies as Evidence (of Things Not Seen)
  • Secondhand Tales and Hearsay
  • Black Legibility—Can I Get a Witness?
  • Trying to Read Me
• 3. Composing Contract
  • “A novel-like tenor”
  • Passing and Protection
  • A Secluded Colored Neighborhood
• Epilogue. When and Where “All the Dark-Glass Boys” Enter
• A Contagion of Madness
• Notes
• References
• Acknowledgments
• Index

A Show of Justice: Racial ‘Amalgamation’ in Nineteenth Century New Zealand

Auckland University Press
1974
400 pages
230 x 150 mm, illustrations
Paperback ISBN: 9781869401214

Alan Ward

First published in 1974, A Show of Justice remains the essential and definitive text on official policies towards the Māori people in the nineteenth century. Professor Ward shows how an understanding of the past explains why Māori today, formally equal under the law, continue having to demand rights assured under the Treaty of Waitangi and why major issues have yet to be recognised and addressed. A Show of Justice also has a glossary of Māori terms, a full index and notes.

Colloquium: Blinded by Sight: Seeing Race Through the Eyes of the Blind

University of Pennsylvania
103 McNeil Building
3718 Locust Walk
Philadelphia, Pennsylvania 19104-6299
Wednesday, 2014-01-29, 12:00-13:00 EST (Local Time)

Osagie K. Obasogie, Professor of Law
University of California, Hastings College of the Law

Professor Obasogie’s research attempts to bridge the conceptual and methodological gaps between empirical and doctrinal scholarship on race. This effort can be seen in his recent work that asks: how do blind people understand race? By engaging in qualitative research with individuals who have been totally blind since birth, this project provides an empirical basis from which to rethink core assumptions embedded in social and legal understandings of race. His first article from this project won the Law & Society Association’s John Hope Franklin Prize in addition to being named runner-up for the Distinguished Article Award by the Sociology of Law Section of the American Sociological Association.  This research provides the basis for Professor Obasogie’s first book, Blinded By Sight, which is forthcoming with Stanford University Press.

His scholarship also looks at the past and present roles of science in both constructing racial meanings and explaining racial disparities. This is tied to his interest in bioethics, particularly the social, ethical, and legal implications of reproductive and genetic technologies. Obasogie’s second book, Beyond Bioethics: Towards a New Biopolitics (with Marcy Darnovsky) is currently under contract with the University of California Press…

For more information, click here.