Mixed Race Studies

The Racial Paradox of Tribal Citizenship

American Studies
Volume 46, Numbers 3 & 4 (Fall-Winter 2005)
pages 163-185
Indigenous Studies Today
Volume 1 (Fall 2005/Spring 2006)

Steve Russell, Associate Professor of Criminal Justice
Indiana University

As I begin to write this my tribal election season is at hand. As usual, all the candidates claim to be “traditional.” This is a claim easy to make and hard to disprove. What is traditional? We are now over half Christian, and more of us speak English than speak Cherokee. Many of the accoutrements of contemporary identity have roots in recent times: frybread, ribbon shirts, jingle dresses, powwows. On the other hand, some items of earlier provenance, such as blowguns and turbans, surprise some modern Cherokees. We date our first written laws from 1808. We have lived under a series of written constitutions, the longest lasting those of 1839 and 1975. Is written law traditional? More to the point of this article, is the current Cherokee law of citizenship, a race-based law like that of most American Indian tribes, traditional?

I hope to show that the idea of “race” is, in Partha Chatterjee’s phrase describing nationalism, “a derivative discourse.” It is not only derived from European colonial discourse, but it has done and continues to do harm to Indian nations on a scale similar to that of smallpox and measles. Pathogens are typically ranked by body count, and so my task here will be to demonstrate that race theory is an Old World pathogen that diminishes the numbers of American Indians on a scale that invites comparison to “guns, germs, and steel.” It is perhaps instructive to read Chatterjee’s words and substitute “race” for “nationalism”:

Nationalism as an ideology is irrational, narrow, hateful and destructive. It is not an authentic product of any of the non-European civilizations which, in each particular case, it claims as its classical heritage. It is wholly a European export to the rest of the world. It is also one of Europe’s most pernicious exports, for it is not a child of reason or liberty, but of their opposite: of fervent romanticism, of political messianism whose inevitable consequence is the annihilation of  freedom.

Can “race” properly be considered, like nationalism, an ideology? According to the American Anthropological Association:

. . . physical variations in the human species have no meaning except the social ones that humans put on them. Today scholars in many fields argue that “race” as it is understood in the United States of America was a social mechanism invented during the 18th century to refer to those populations brought together in colonial America: the English and other European settlers, the conquered Indian peoples, and those peoples of Africa brought in to provide slave labor. . . . As they were constructing U.S. society, leaders among European-Americans fabricated the cultural/behavioral characteristics associated with each “race,” linking superior traits with Europeans and negative and inferior ones to blacks and Indians…. Ultimately, “race” as an ideology about human differences was subsequently spread to other areas of the world. It became a strategy for dividing, ranking, and controlling colonized people used by colonial powers everywhere.

The AAA Statement refers in a part not quoted above to the “Great Chain of Being” theory as the philosophical basis for ranking people by race, a religious theory that looked to early anthropology for scientific support. Cultural anthropology was in turn supported in its endorsement of racial hierarchy by disciplines thought to be more empirical in content: archaeology and physical anthropology. Outside of Indian law, the primary postbellum legal expression of the “Great Chain of Being” was anti-miscegenation law, representing a legal endorsement of racist ideology that was not declared unconstitutional by the U.S. Supreme Court until 1967…

Read the entire article here.

The Value of Intersectional Comparative Analysis to the “Post-Racial” Future of Critical Race Theory: A Brazil-U.S. Comparative Case Study

Connecticut Law Review
Volume 43, Issue 5 (July 2011)
pages 1407-1437

Tanya Katerí Hernández, Professor of Law
Fordham University

This Commentary Article aims to illustrate the value of comparative law to the jurisprudence of Critical Race Theory (CRT), particularly with reference to the CRT project of deconstructing the mystique of “postracialism.” The central thesis of the Article is that the dangerous seductions of a U.S. ideology of “post-racialism” are more clearly identified when subject to the comparative law lens. In particular, a comparison to the Brazilian racial democracy version of “post-racialism” is an instructive platform from which to assess the advisability of promoting post-racial analyses of U.S. racial inequality. In Part I the Article introduces the value of comparative law to the future development of CRT. Part II provides an overview of Brazilian “post-racial” discourse. Part III then details the quantitative and qualitative indicators of racial discrimination and intersectional race and gender discrimination in Brazil. Part IV focuses upon the Brazilian legal opposition to post-racialism as evidenced by a recent intersectional anti-discrimination case. The Article then concludes that the critical comparative examination of the Brazilian version of “post-racialism” assists in elucidating the concrete counterintuitive harms of a “post-racial” perspective in the United States.

ARTICLE CONTENTS

• I. INTRODUCTION
• II. BRAZILIAN “POST-RACIAL” RACIAL DISCOURSE
• III. QUANTITATIVE AND QUALITATIVE INDICATORS OF DISCRIMINATION IN BRAZIL
• IV. THE INTERSECTIONAL POSITION OF AFRO-BRAZILIAN WOMEN
• V. THE INTERSECTIONAL CASE OF TIRIRICA

I. INTRODUCTION

In her article in this volume, Twenty Years of Critical Race Theory: Looking Back To Move Forward, Kimberlé Williams Crenshaw turns her attention to considering the “contemporary significance of CRT’s trajectory in light of today’s ‘post-racial’ milieu.” Post-racialism is characterized by a public policy agenda of colorblind universalism rooted in the assertion that society has transcended racism. Post-racialism incorporates colorblindness but is distinct in extending beyond the colorblindness retreat from race as primarily an aspiration for eliminating racism. In contrast, the rhetoric of post-racialism contends that racism has already been largely transcended.

In Crenshaw’s consideration of post-racialism she notes that the present challenge to Critical Race Theory (CRT) is to preclude an “overinvestment in the symbolic significance” of post-racialism as a racial frame that disregards manifestations of racial inequality in its celebration of formal equality and a colorblindness that equates the articulation of racial concerns with an act of racism. Crenshaw convincingly demonstrates the fallacy of post-racialism and the simultaneous difficulty in dispelling it, given the contemporary racial fatigue and public desire to foreclose any discussions of race. To combat the Obama mania that Crenshaw notes sanctions all talk of racism as a racial grievance itself, Crenshaw urges CRT to develop a broader project “to remap the racial contours in the way that people see the world that we live in—then in so doing . . . create a new set of possibilities for racial-justice advocates.” Crenshaw urges that the “next turn in CRT should be decidedly interdisciplinary, intersectional and cross-institutional.” In this Commentary Article, I would like to suggest that the next turn in CRT also focus more deeply on comparative law.

Because the post-racialism racial frame casts a veil which hinders the ability to see racial disparities and understand them as connected to various forms of racial discrimination, what is needed is a mechanism for refocusing the U.S. racial lens. Comparative law can make a useful contribution in the effort to refocus the racial lens. A key insight from comparative law is its “potential for sharpening, deepening and expanding the lenses through which one perceives law,” because of its ability to “challenge entrenched categorizations and fundamental assumptions in one’s own and others’ legal cultures.” Indeed, anthropologists have long noted that we cannot fully see and appreciate our own “culture” until we have compared it to that of another. A number of CRT scholars and related LatCrit [Latino Critical Race Studies] scholars have started the project of incorporating a comparative law component into CRT and the associated endeavor of applying CRT to non-U.S. legal jurisdictions. What I am underscoring in this Article is the particular usefulness that comparative law presents for the specific project of combating the post-racialism racial frame. This is because contemporary U.S. CRT scholars can only set forth conjectures about the future long-term dangers of post-racial rhetoric (such as hindering the pursuit of racial equality by shutting down any discussion of race in favor of equating racial disparities with cultural deficiencies and socio-economic disadvantages). In contrast, a comparative consideration of another region in which a form of post-racialism has long existed provides the opportunity to examine the actual adverse consequences of post-racial rhetoric.

As a vehicle for illustrating the value of comparative law to the CRT project of dismantling the post-racialism racial frame, I shall provide a comparative analysis of an instructive Brazilian intersectionality case. Because Brazil is a country that has long claimed that all racial distinctions were abandoned with the abolition of slavery, it is an instructive platform from which to assess the viability of contemporary assertions of postracialism in the United States. Yet, as shall be discussed below, growing discrimination jurisprudence in Brazil shows the longstanding post-racial assertion to be false. To the extent that a century-old claim to a form of post-racialism in Brazil is shown to be a fallacy, the many parallels that exist between Brazil and the United States enable a salient critique of U.S. post-racialism. In particular, because of their objectified and denigrated status, examining the treatment of Black women as an intersectional matter, helps to demystify the barriers to productive transnational comparisons of racial ideologies between the United States and Latin America. In order to be concrete, I shall focus on a recent intersectional discrimination case that was litigated in Brazil. But before discussing the case, it will be helpful to first explain the contours of the “post-racial” Brazilian racial ideology.

II. BRAZILIAN “POST-RACIAL” RACIAL DISCOURSE

Like the United States, Brazil is a racially diverse nation with a significant number of persons of African descent stemming from the country’s history of slavery. Yet Brazil’s involvement in the African slave trade was even longer and more intense than that of the United States. This accounts for the fact that, aside from Nigeria, Brazil is the nation with the largest number of people of African descent in the world. After emancipation, Brazil continued to be a racially divided nation, but occasionally provided social mobility for a few light-skinned mixed-race individuals. This social mobility was directly tied to the racist nationbuilding concepts of branqueamento (whitening) and mestiçagem (racial mixing/miscegenation), which can best be described as campaigns to whiten the population through a combination of European immigration incentives and the encouraging of racial mixture in order to diminish over time the visible number of persons of African decent. Indeed, the social recognition of the racially-mixed racial identity of mulato/pardo was a mechanism for buffering the numerical minority of white-identified elite Brazilians from the discontent of the vast majority of persons of African descent. Greater symbolic social status and occasional economic privilege were accorded based on one’s light skin color and approximation of a European phenotype, which simultaneously denigrated Blackness and encouraged individuals to disassociate from their African ancestry. It should be noted that in terms of concrete economic benefits, few mulattoes radically superseded the status of those Afro-descendants viewed as “Black.” Rather, the recognition of mulattoes as racially distinctive from Blacks served primarily as a kind of “psychological wage” associated with the prestige of approximating whiteness without any significant groupwide monetary benefit for such status. As a result, Brazil was able to maintain a rigid racial hierarchy that served white supremacy in a demographically-patterned society where people of African descent approximated and sometimes even outnumbered the white elite. This is in marked contrast to the demographic pattern in the United States, where, with just a few exceptions, Blacks have always been a numerical minority and have thus been more vulnerable to the white majority’s enforcement of Jim Crow racial segregation after emancipation from slavery. In Brazil, with its greater population of people of African descent, the ideological use of the “mulatto escape hatch” was such an effective tool of racial subordination that Jim Crow legal segregation was never needed and all racial justice movements were efficiently hindered. But it was the absence of Jim Crow in Brazil that later enabled the nation to promote itself as a country in which racial mixture had created a racially harmonious society. In fact, until recently, it has been a firmly entrenched notion that Brazil was a model of race relations that could be described as a “racial democracy” exemplified by racial fluidity in its racial classification practices. Hence, post-racialism in Brazil, and much of Latin America is characterized by a negation that racism exists after the abolition of slavery. The denial of racism is justified by the racial mixture of the population which has presumably “transcended” racism. Existing racial disparities are instead attributed to the cultural deficiencies and socio-economic disadvantages of Afro-Brazilians. As a result, those who raise the issue of racial discrimination are viewed as racist themselves. These facets of Brazilian post-racialism closely parallel the rhetoric of post-racialism in the United States and the related fascination with racial mixture as emblematic of racial harmony…

Read the entire article here.

One ‘Speck’ of Imperfection—Invisible blackness and the one-drop rule: An interdisciplinary approach to examining Plessy v. Ferguson and Jane Doe v. State of Louisiana

Indiana University
2008
371 pages
Publication Number: AAT 3315914
ISBN: 9780549675372

Erica Faye Cooper

Submitted to the faculty of the University Graduate School in partial fulfillment of the requirements for the degree Doctor of Philosophy

By 1920 virtually every state legislature had adopted “one-drop” laws. These laws were important because they served as the means for determining racial identity in the United States throughout the 20th century. In the past, scholars focus on either the social or legal history of the one-drop rule. Despite the exhaustive social and legal historical accounts, I argue that the “history” of the one-drop rule is incomplete without a rhetorical history. My findings suggest that a rhetorical history of the one-drop rule is vital because it explores how the doctrine emerged in legal and social discourse. In addition, a rhetorical history also uncovers the persuasive strategies used by rhetors to reinforce racist ideology.

In this dissertation, I found that the one-drop rule occupied a significant role in judicial rhetoric through the persuasive strategies of judicial actors—court justices and lawyers. I revealed that their language choices created a pseudo “racial” reality that was characterized by a rigid black-white racial binary. This “false” reality functioned persuasively to obscure the racial diversity that actually existed in the United States during specific moments in time. Using Critical Race Theory from legal studies and McGee’s notion of the “ideograph” from critical rhetorical theory, I examined the U.S. Supreme Court’s holding in Plessy v. Ferguson (1896) and the Court of Appeals’ holding in Jane Doe v. State of Louisiana (1985). My findings show that such terms as “white,” “black,” and the “one-drop rule” were used by lawyers and court justices in disputes involving racial identity and legal rights beginning in 1896. In both cases, the one-drop ideograph dominated discussions regarding who was “black” or “white.” Based on its ideographic relationship with the one-drop rule, “black” was defined to include mixed and unmixed blacks as well as whites. Within this ideographic analysis, I describe how the notion of invisible blackness was rhetorically constructed from the language used by the court. The one-drop rule continues to influence legislation and social attitudes.

Table of Contents

• Chapter 1
  • Introduction to Problem
  • Justifying for Research and Statement of Purpose
  • Research Questions, Methods, and Overview
    • Methods: Case Analysis
    • Preview of Chapters
• Chapter 2
  • Socio-Cultural history
  • Definition of the one-drop rule
    • Rationales for why the one-drop rule emerge
    • The One-Drop Rule Today
    • Summary
  • Legal History
    • Emergence of the Color Line in the law
    • Summary
  • Prior Analyses of the Plessy and Phipps decisions
  • Conclusion
• Chapter 3
  • The Coming
    • Social Context: Racial Identity in Post-Bellum Louisiana
    • Legal Context
    • Introduction to Plessy
    • Summary
  • The ideographs
    • Plessy and Ferguson Briefs
    • Supreme Court Response
  • Rhetorical Implications
• Chapter 4
  • The Coming
    • Socio-Cultural Context
    • Summary of the Socio-Legal Context
    • Who is Suzy Phipps?
  • The ideographs
    • Phipps Briefs
    • The Judicial Responses
    • Summary
  • Rhetorical Implications
• Chapter 5
  • Summary and Findings
  • Implications
  • Conclusions
• Cases and Legislative Acts
• References
• Vitae

INTRODUCTION TO THE INVISIBLITY OF BLACKNESS: THE ONE DROP RULE AS A RHETORICAL CONSTRUCT

In the 1990s, a popular figure, Tiger Woods, attempted to claim an intermediate racial status by embracing his mixed race lineage. Woods, whose mother is Thai and whose father is Native American, African American, Caucasian, and Chinese, publicly refused the label of black. Woods created the term, “Cablinasian” to reflect his Caucasian, Native American, black, and Asian ancestry. Although many supported his attempts to embrace a multi-racial heritage, the doctrine known as the “one-drop-rule” shaped public opinion on the subject of his racial identity. The one-drop rule, also known as the rule of hypo-descent, recognizes a person as “black” if she possesses any trace of African ancestry.

After winning a Master’s Tournament, fellow golfer Fuzzy Zoeller’s responses to Tiger Woods reflected one-drop reasoning and racist thinking. Zoeller stated, “he hoped that Woods would not request that dinner consist of ‘fried chicken and black-eye peas’.” Zoeller assumes that because Woods’s father is partly “black” Woods must also be black. In this one-drop argument, the presence of other “blood lines” is irrelevant. Zoeller’s statement also supported a stereotype of black people, suggesting that all members of a group behavior the same. The stereotype is also racist because of the image of blacks eating fried chicken and/or watermelon supported white supremacist beliefs.3 Despite Woods’ attempt to embrace his ethnic and racially diverse heritage, some people continued to define him as black. In essence, this example illustrates how the doctrine known as the “one-drop rule” shapes contemporary public thought on matters involving race.

Although the one-drop rule has been studied by scholars in various disciplines, none have focused on how the one-drop rule operates rhetorically. Instead, scholars have traced its history or commented on how it influenced the formation of racial identity in the United States. In this dissertation, I offer a different perspective to understanding the significance of the one-drop rule by analyzing how this doctrine operates rhetorically in legal discourse. Through a rhetorical history of the doctrine I show how the one-drop rule becomes legally sanctioned through rhetorical commitments of court justices. I argue that one-drop reasoning serves as a persuasive strategy, used by court justices, operating as rhetors, in 1896 and 1985, to promote a commitment to racism.

Using, McGee’s theory of the ideograph, from Critical Rhetorical Theory, and Critical Race Theory, from legal studies, I reveal how race (Negro, mixed race, and white) is an integral component of legal discourse. Through this analysis I explore the relationship between racial identity, rhetoric, and power in legal discourse. The manner in which race is rhetorically defined in legal discourse highlights the racist nature of traditional legal theory and contributes to a racial hierarchy that is enforced through the law. Taking a critical rhetorical and legal approach, I believe, provides useful information to the on-going discussion of racial identity and the one-drop rule in rhetorical and legal studies…

Purchase the dissertation here.

Daniel Sharfstein, “The Invisible Line: Three American Families and the Secret Journey from Black to White” Penguin, 2011

New Books in African American Studies
Discussions with Scholars of African Americans about their New Books
2011-11-01

Vershawn Young, Associate Professor of English
University of Kentucky

Daniel Sharfstein’s The Invisible Line: Three American Families and the Secret Journey from Black to White (Penguin Press, 2011) is the latest and perhaps best book in the growing genre of neo-passing narratives. The Invisible Line easily rests between Philip Roth’s The Human Stain and Blis Broyard’s One Drop, though it is different and in ways richer than both. Part American history, part legal analysis (Sharfstein is a legal scholar), part ethnographic study, it is a wholly gripping and exquisitely written narrative that tracks the racial passing of three black families over several centuries, leading us right up to their living “white” descendents today. You will certainly learn a lot about the history of race in the United States from The Invisible Line and, if you’re like me, you won’t be able to put it down.

Download the interview here. (00:57:52.)

Escape into Whiteness

The New York Review of Books
2011-11-24

Brent Staples

Daniel J. Sharfstein. The Invisible Line: Three American Families and the Secret Journey from Black to White. New York: Penguin Press, 2011. 415 pp. Hardcover ISBN: 9781594202827.

Tickets to the dedication of the Lincoln Memorial were a hot item in the spring of 1922. Tens of thousands of people converged on the Mall for a day of celebration that included parades, music, and speeches by President Warren Harding and Supreme Court Chief Justice William Howard Taft, under whose presidency the memorial had been initiated.

One of the better-known black Washingtonians on hand that sunny Memorial Day was Whitefield McKinlay, former collector of customs at Georgetown and real estate manager to many of the city’s light-skinned mulatto elite. Nearing his seventieth birthday, McKinlay had lived through the best and the worst of what the post–Civil War world had to offer people of color. He had enrolled in the University of South Carolina during the heady days of Reconstruction and then been expelled when the Democrats rose to power there and created a particularly virulent form of the Jim Crow state. He had seen black politicians swept into office by newly enfranchised black voters and swept out again when the franchise was revoked.

Through this same process, Washington, D.C., had been transformed from what one of McKinlay’s more prominent real estate clients had termed “The Colored Man’s Paradise”—a place of considerable freedom and opportunity—into what the historian David Levering Lewis aptly describes as a “purgatory,” where Negroes were barred from hotels and restaurants, driven from federal jobs, and generally persecuted by Southerners in Congress who seemed intent on erasing the colored presence from the city. Though he does not deal at length with McKinlay, Daniel Sharfstein, an associate professor of law at Vanderbilt, brings this part of late-nineteenth- and early-twentieth-century Negro society vividly to life in his authoritative and elegantly written The Invisible Line: Three American Families and the Secret Journey from Black to White…

Read or purchase the book review here.

A Very Sad Occurrence

Staunton Vindicator
1869-08-27
page 3, Column 2

Source: Valley of the Shadow: Civil War Era Newspapers, University of Virginia Library

Summary: The paper prints an account of the killing of Jacob Scherer by John Stanley. Stanley had been co-habiting with a woman of mixed race. Scherer led a party to break up the union. They broke into the house and Stanley shot Scherer in the process. Stanley was arrested for murder. The article includes a transcript of the testimony before the grand-jury.

(Names in announcement: Jacob Scherer, John B. Scherer Sr., John Stanley, Ginnie Sorrel, Clinedinst, Anderson, Dr. B. B. Donaghe, James Gilmore, Joseph Ryan, Trayer, N. S. White, Dr. Fauntleroy, J. T. Parrent, Robert Campbell, M. G. Harman)

Full Text of Article:

Our people were startled, about midnight Saturday night last, by the announcement that Jacob Scherer, third son of Jno. B. Scherer, Sr., had been killed by Mr. John Stanley.

Jacob Scherer was a young, unmarried man, about twenty years of age, full of fun, sociable, of an amiable disposition, which caused all our people to esteem him highly, and it may well be imagined, that the announcement that he had been cut down, in the vigor of life, caused a thrill of pain in the very breast of every one.

Mr. Stanley is a man of middle age, with a wife and one child, a son, about 15 or 16 years old, and was regarded as a steady, quiet, well-meaning man.

The circumstances attending the killing are as follows:

A party of some eight or ten young men, learning that Mr. Stanley was co-habiting with a mulatto girl, named Ginnie Sorrel, blacked their faces and went to her house, on Market Street, Saturday night last, for the purpose of breaking up the illicit connexion. Several entered the house and immediately a pistol was fired, killing Jacob Scherer, almost instantly.

Mr. Stanley was identified by several of the party present, as the one who fired the shot, and was arrested, at his house, about two hours after and lodged in jail.

The examination of the case was entered into before Justices Pearce, Clinedinst and Anderson, on Tuesday morning last. We give below a synopsis of the testimony of the witnesses examined…

Read the entire article here.

Doctor’s quest to engineer a “master race” in the early 1900s still hurting Virginia’s Indian tribes

WTVR-CBS 6 TV
Richmond, Virginia
2011-07-12

Mark Holmberg, Staff reporter

RICHMOND— Richmond’s famous Hollywood Cemetery serves as the final resting place of presidents, statesmen and generals.

Few have had the impact of Dr. Walter Plecker. His stormy legacy continues today, 150 years after his birth.

“My parents always made sure we knew the story of what Walter Plecker had done and how it had affected our people,” said Wayne Adkins, president of the Virginia Indian Tribal Alliance For Life.

“Plecker was a menace to Virginia Indians over many years,” said Stephen R. Adkins, chief of the Chickahominy Tribe. “My mom and dad, for instance, had to go to Washington DC in 1935 to get married as Indians. It was illegal to do so in Virginia under penalty of up to a year in jail.”

“Dr. Plecker was convinced that there was a need to purify the white race,” said Paul Lombardo, a law professor at Georgia State University and formerly a eugenics expert at the University of Virginia. “He thought that he was preserving the Commonwealth of Virginia, that he was maintaining the United States of America and, most importantly to him, that he was protecting the white race.”

For 34 years, starting in 1912, Dr. Plecker served as the director of Virginia’s Bureau of Vital Statistics, carefully compiling birth, death and marriage records.

For Plecker, a native of Augusta County, there were only two races: white and non-white. Anyone who had what he thought was one drop of other than white blood was listed as “colored.” They were mongrels, in his view.

Plecker was a complex man who saved the lives of countless babies, including those of blacks and Indians, with updated birthing and midwife techniques, along with simple, homemade incubators for premature babies, according to historic profiles.

He was relentless. With great energy he compiled lists and wrote letters chastising whites who applied for marriage licenses with those Plecker thought were impure. Those letters are part of the extensive correspondence that are part of the vast Plecker record.

“There’s no question that Plecker was incredibly aggressive using the few prerogatives the law gave him to register people,” Lombardo said. “He used those prerogatives really to threaten people, to coerce them… Dr. Plecker once boasted that he had a list of people, by race, that rivaled the list that was kept by Hitler of the Jews.”

If he even just suspected someone had any African-American blood, they would go on his mongrel list.

Virginia’s Native Americans particularly felt his wrath. He was certain the tribes had interbred with blacks. “Like rats, when you’re not watching, they’ve been sneaking in their birth certificates though their own midwives,” Plecker wrote.

“We couldn’t claim we were Indian, it was against the law to say we were Indian,” said Kenneth Branham, chief of the Monacan Tribe. “What do we claim? We’re not black. And we’re not white.”

“That whole idea that you’re not what you believe yourself to be,” said Sharon Bryant, the newly elected Monacan chief. “That an entire community would tell you that, it becomes very oppressive to the people.”

“Whole groups of people who formerly were recognized among the tribes of Virginia simply disappeared from the records,” Lombardo said. “They were no longer considered to be Native Americans or Indians as they were called. Their children were not recognized as members of the tribes, and they’re living with that legacy right now.”

Plecker and his many supporters believed not only that the races should never intermarry, they shouldn’t even mingle. Strict segregation would last for generations.

Blacks had to have their own schools and neighborhoods. So did Indians…

…In 1924, at Plecker’s urging and with the support of many Virginians, the General Assembly passed the Racial Integrity Act, which narrowly defined race and made it illegal to for whites to marry anyone of any other race. Plecker wrote to the governors of the rest of the states, urging them to pass similar laws to save the white race.

Also, that year, Lombardo said, “there’s a sterilization law that’s passed in Virginia, upheld later in the United States Supreme Court, allowing some 60,000-plus people to be sterilized in institutions in 32 states all over the country.”

There was also a strict immigration law passed then.

The Racial Integrity Act stood until 1967, when the Loving case about an interracial couple led to a Supreme Court reversal.

But the damage to Virginia’s Indian tribes continues. There are more than 560 federally recognized Indian tribes in the country. But none of Virginia’s tribes, the ones that helped the settlers survive, have that crucial recognition that gives them, in essence, sovereign status and entitles them to nation-building assistance.

The U.S. Department of the Interior requires that tribes be able to show an unbroken bloodline. And Walter Plecker carved a hole – decades long – in their heritage…

Read the entire article here.

Because of Intersex: Intersexuality, Title VII, and the Reality of Discrimination “Because of… [Perceived] Sex”

New York University Law Review of Law & Social Change
Volume 34, Issue 1 (2010)
pages 55-121

Ilana Gelfman, Skadden Fellow
Greater Boston Legal Services

The federal doctrine of sex discrimination in employment depends on the underlying yet unstated assumption that sex is binary: one is either a man or a woman, and there is no other possibility. The existence of intersex individuals challenges this assumption. This article asks how Title VII doctrine can be applied to intersex employees. In answering, the Article considers (1) the ramifications of the ever-developing definition of “because of . . . sex” in Title VII jurisprudence as applied to sexual minorities and (2) the implications of Title VII doctrine regarding mixedrace individuals for our understanding of how the law treats (and should treat) individuals “in between” the categories. The article moves beyond previous work, which suggests that intersex individuals be protected as a third sex category under Title VII, because that work only reinforces the exact sex categorizations that should be undermined by any serious examination of intersexuality. Instead, the article proposes a new model for protection against sex discrimination in employment—that of discrimination “because of perceived sex.”

Table of Contents

• ABSTRACT
• INTRODUCTION
• I. TITLE VII AND INTERSEX INDIVIDUALS: THE CONFLICT BETWEEN DOCTRINE AND REALITY
  • A. Title VII’s Binary Conception of Sex
  • B. Intersexuality Challenges the Binary
  • C. A Conflict Between Doctrine and Reality
• II. IN SEARCH OF A DEFINITION: “BECAUSE OF…SEX” AND SEXUAL MINORITIES
  • A. The First Generation: The “Plain Meaning” of Sex
  • B. The Second Generation: Sex Stereotyping
  • C. The Third Generation: Discrimination Against Transgender Individuals
  • D. Moving Forward: Implications for Intersex Individuals
• III. TROUBLE WITH CATEGORIES: ANTI-DISCRIMINATION LAW AND MULTIRACIAL PLAINTIFFS
  • A. A Brief History: Law and the Multiracial Individual
  • B. Federal Anti-discrimination Law and the Multiracial Plaintiff
  • C. “In Between” the Categories: Multiracial and Intersex Plaintiffs Compared
• IV. DOCTRINAL POSSIBILITIES: CATEGORIZING INTERSEX INDIVIDUALS FOR THEIR OWN PROTECTION
  • A. Why Protect Intersex Individuals at All?
  • B. Maintaining the Traditional Categories of Male and Female
  • C. Adding a Third Category: Acknowledging Intersexuality
• V. RECONCEPTUALIZING SEX DISCRIMINATION: PERCEIVED SEX
  • A. What Is Perceived Sex?
  • B. Application of the Doctrine
• CONCLUSION

Read the entire essay here.

Measures of Equality: Social Science, Citizenship, and Race in Cuba, 1902-1940

University of North Carolina Press
November 2003
256 pages
6.125 x 9.25, 8 illus., notes, bibl., index
Paper ISBN  978-0-8078-5563-8

Alejandra Bronfman, Professor of History
University of British Columbia

In the years following Cuba’s independence, nationalists aimed to transcend racial categories in order to create a unified polity, yet racial and cultural heterogeneity posed continual challenges to these liberal notions of citizenship. Alejandra Bronfman traces the formation of Cuba’s multiracial legal and political order in the early Republic by exploring the responses of social scientists, such as Fernando Ortiz and Israel Castellanos, and black and mulatto activists, including Gustavo Urrutia and Nicolás Guillén, to the paradoxes of modern nationhood.

Law, science, and the social sciences—which, during this era, enjoyed growing status in Cuba as well as in many other countries—played central roles in producing knowledge and shaping social categories in postindependence Cuba. Anthropologists, criminologists, and eugenicists embarked on projects intended to employ the tools of science to rid Cuba of the last vestiges of a colonial past. Meanwhile, the legal arena created both new freedoms and new modes of repression. Black and mulatto intellectuals and activists, working to ensure that citizenship offered concrete advantages rather than empty promises, appropriated changing social scientific and legal categories and turned them to their own uses. In the midst of several decades of intermittent racial violence and expanding social and political mobilization by Cubans of African descent, debates among intellectuals and activists, state officials, and legislators transformed not only understandings of race, but also the terms of citizenship for all Cubans.

That no black or mulatto person or persons shall hereafter be permitted to be sworn or give evidence in any court of record, or elsewhere, in this state, in any cause depending, or matter of controversy, where either party to the same is a white person.

—5 Laws of Ohio 53, approved January 25, 1807