Mixed Race Studies

The Other Loving: Uncovering The Federal Government’s Racial Regulation of Marriage

New York University Law Review
Volume 86, Number 5 (November 2011)
pages 1361-1443

Rose Cuison Villazor, Professor of Law
University of California, Davis

This Article seeks to fill a gap in legal history. The traditional narrative of the history of the American racial regulation of marriage typically focuses on state laws as the only sources of marriage inequality. Overlooked in the narrative are the ways in which federal laws also restricted racially mixed marriages in the decades before 1967 (when the Supreme Court invalidated antimiscegenation laws in Loving v. Virginia). Specifically, during the American occupation of Japan after World War II, a combination of immigration, citizenship, and military laws and regulations led to restrictions on marriages along racial lines. These laws also converged to prevent married couples, many of whom were White American soldiers and local Japanese women, from living in the United States together. Accordingly, this Article claims that the confluence of immigration, citizenship, and military laws functioned as a collective counterpart to state antimiscegenation laws.

By unearthing this neglected history, this Article seeks to deepen the conventional account of the public regulation of mixed marriages. As the Article reveals, racial barriers to marriage were far more pervasive than previously acknowledged. Contrary to the familiar chronicle, racial restrictions on marriage occurred through federal laws, were enforced by federal officials, took place beyond state borders, and effected distinct harms on interracial couples whose experiences have largely escaped legal and scholarly inquiry. Recovering this lost history thus provides a more complete story of antimiscegenation regulation. Moreover, it draws attention to the largely undertheorized role that immigration law played in preventing interracial marriages and provides insight into contemporary debates on federal involvement in marriage regulation.

• INTRODUCTION
• I. FEDERAL EXCLUSION OF RACIALLY INADMISSIBLE WIVES
  • A. The Conventional Narrative of Antimiscegenation History
  • B. The Story of John and Helene Bouiss
  • C. Bonham v. Bouiss: Between Wife and Country
• II. DISENTANGLING THE FEDERAL ANTIMISCEGENATION REGULATORY SCHEME
  • A. Citizenship Law and Race
  • B. Immigration Law, Racial Inadmissibility, and Construction of a White Nation
  • C. Military Marriage Regulations
• III. THE CONVERGENCE OF FEDERAL LAWS FACILITATED BARRIERS TO INTERRACIAL MARRIAGES ABROAD
  • A. The War Brides Act
  • B. Immigration Inadmissibility as a Basis for Denying Marriages to Japanese Spouses
  • C. Immigration Law’s Bar Against Racially Inadmissible Wives
• IV. BOUISS AS THE OTHER LOVING
  • A. Bouiss and the Amendments to the War Brides Act
  • B. Congressional Recognition and Remedy of Obstacles to Interracial Marriages
• V. THE CONSEQUENCES OF THE FEDERAL ANTIMISCEGENATION REGULATORY SCHEME
  • A. Immigration Law’s Promotion of White Supremacy Through Marriage Restrictions
  • B. Extraterritorial Antimiscegenation Regulation
  • C. Country and Citizenship Versus Wives and Children
  • D. Mixed-Race Children and Lack of Citizenship
• VI. CONTEMPORARY IMPLICATIONS
• CONCLUSION

“Except under very unusual circumstances, United States military personnel, and civilians employed by the War Department, will not be granted permission to marry nationals who are ineligible to citizenship in the United States.”

—U.S. Army, Circular No. 6

INTRODUCTION

On May 9, 1946, Helene Emilie Bouiss, a half-Japanese, half-German woman, and her husband, John Bouiss, a White American soldier, arrived in Seattle, Washington, aboard a military ship. The two were newlyweds, married by the captain of the ship just days before landing in Seattle. Their decision to marry prior to coming to the United States was significant. This is because six months earlier, Congress had passed the War Brides Act of 1945 (War Brides Act), which conferred on persons who were serving or who had served in the U.S. military the right to sponsor the expedited admission of their spouses to the United States. Thus, Helene‘s marriage to John, an honorably discharged soldier, provided the basis for her entry into the country. Or so they thought…

…D. Mixed-Race Children and Lack of Citizenship

One of the most compelling and troubling aspects about the deployment of immigration and citizenship law in the restriction of overseas marriage was the effect that the inability to marry in Japan had on the children of American soldiers. Children of American-Japanese couples, like their counterparts in the United States, faced discrimination in Japan and were considered inferior because of their mixed racial background. As the Supreme Court noted in Loving, bans against interracial marriage were rationalized as helping to prevent “obliteration of racial pride” and a “mongrel breed of citizens.” Mixed children evidenced the “corruption of blood” that would have destroyed the “quality of . . . [Virginia’s] citizenship.” Indeed, such fear compelled a judge in Louisiana to refuse to issue a marriage license to an interracial couple as recently as October 2009. According to the judge, “[t]here is a problem with both groups accepting a child from such a marriage.” Ample scholarship has been devoted to the various social and legal problems that confronted mixed-race children. These problems included the illegitimate status of children whose parents were legally prohibited from marrying.

The federal regulation of interracial marriage similarly led to a generation of out-of-wedlock children in Japan, who were referred to as “GI babies,” “Occupation babies,” or “half-half babies.” As already explained, many American soldiers were prohibited from marrying their Japanese girlfriends. Other couples chose to marry without the military’s approval. In both situations, the relationships lacked the official recognition of a valid marriage. As a result, children of these American-Japanese couples were considered illegitimate. To be sure, the precise numbers of illegitimate Occupation babies whose parents either unsuccessfully sought to marry or married without the official approval of the military are unknown. Indeed, one scholar noted that the U.S. military prohibited both military and Japanese officials from conducting a census of Occupation children…

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Critical Legal Theorizing, Rhetorical Intersectionalities, and the Multiple Transgressions of the “Tragic Mulatta,” Anastasie Desarzant

Women’s Studies in Communication
Volume 27, Issue 2, 2004
pages 119-148
DOI: 10.1080/07491409.2004.10162470

Marouf Hasian Jr., Professor of Communation
University of Utah

This essay provides a critical legal analysis of Anastasie Desarzant’s defamation case. The author argues that the use of an intersectional approach to legal discourse allows scholars to see how race, class, and gender issues influenced the social construction of the “tragic mulatta” in key Louisiana judicial contests. While the essay acknowledges that many contemporary and historical audiences have remembered “Toucoutou’s” (Desarzant’s) racial transgressions, they have forgotten about how some of her neighbors rallied to her cause in the late 1850s.

In recent years, a number of communication scholars have been interested in explicating some of the rhetorical strategies that have been used by feminists and other social agents who have resisted multiple forms of societal oppression (Demo, 2000; Dow, 1997; Shome, 2000; Squires & Brouwer, 2002). I would like to extend these insights by looking at how some women of color and their allies dealt with complexities of Louisiana slavery laws in the antebellum South. By looking at some of the textual arguments and public performances that appeared in Desarzant cases of the late 1850s, I hope to show how racialized subjects dealt with some of the regulatory powers of a judiciary that was dedicated to the preservation of the powers of whiteness. At the same time, I want to illustrate some of the rhetorical strategies that were used in these legal contests, so that we can see how “racial passing” was “both a social enterprise and a subject of cultural representation” (Wald, 2000, p. II).

Today we are used to thinking of racial identities in homogenous terms such as whiteness or blackness (Bonnett, 1999), but there have been times when racial identities had more fluidity and heterogeneity. For many years, scholars (Blassingame, 1973; Dominguez. 1986; Foner, 1970; Lachance, 1994; Omi & Winant, 1994) have been intrigued by the particularities of…

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Only Skin Deep? The Harm of Being Born a Different Colour to One’s Parents: A (a minor) and B (a minor) by C (their mother and next friend) v A Health and Social Services Trust [2010] NIQB 108; [2011] NICA 28

Medical Law Review
Volume 19, Issue 4 (Autumn 2011)
pages 657-668
DOI: 10.1093/medlaw/fwr029

Sally Sheldon, Professor of Medical Law and Ethics
University of Kent

The complainants, A and B, were twins born as a result of IVF treatment involving donated sperm provided by the Defendant Trust to their mother. While the children’s parents were white, the twins had darker skin than either of them and different skin colour to each other, a difference that had become more marked as they had grown older. It transpired that while the Trust’s normal practice would be to request only sperm from ‘Caucasian’ or ‘white’ donors for a white couple, in this instance sperm from a ‘Caucasian (Cape Coloured)’ donor had mistakenly been used. The implication of this error was that while the sperm donor was white, there was no guarantee that his genetic children would also be so. By the time the action reached the courts, the twins were eleven years old.

The Trust admitted liability to the parents. However, it opposed the action brought on behalf of the twins, in which they alleged three broad kinds of harm. First, because of their colour, the twins had become ‘the subject of derogatory comment and hurtful name calling from other children, causing emotional upset’. Secondly, they had been the subject of adverse and hurtful comment about the colour of their skin and their physical dissimilarity from each other, on the one hand, and between themselves and their parents on the other. This had led them to question their parents about whether they were adopted. Thirdly, should either twin go on to have a child with a partner of mixed race, any child born to them was likely to have a different skin colour from either parent.

The court proceedings raised, by common agreement of the parties, a number of legal issues: first, the existence and nature of a duty of care owed to A …

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Imagining Identity in New Spain: Race, Lineage, and the Colonial Body in Portraiture and Casta Paintings

University of Texas Press
2003
216 pages
6 1/8 x 9 1/4 in.
12 color and 60 b&w illus., 4 tables
Hardcover ISBN: 978-0-292-71245-4

Magali M. Carrera, Professor of Art History
University of Massachusetts, Dartmouth

Reacting to the rising numbers of mixed-blood (Spanish-Indian-Black African) people in its New Spain colony, the eighteenth-century Bourbon government of Spain attempted to categorize and control its colonial subjects through increasing social regulation of their bodies and the spaces they inhabited. The discourse of calidad (status) and raza (lineage) on which the regulations were based also found expression in the visual culture of New Spain, particularly in the unique genre of casta paintings, which purported to portray discrete categories of mixed-blood plebeians.

Using an interdisciplinary approach that also considers legal, literary, and religious documents of the period, Magali Carrera focuses on eighteenth-century portraiture and casta paintings to understand how the people and spaces of New Spain were conceptualized and visualized. She explains how these visual practices emphasized a seeming realism that constructed colonial bodies—elite and non-elite—as knowable and visible. At the same time, however, she argues that the chaotic specificity of the lives and lived conditions in eighteenth-century New Spain belied the illusion of social orderliness and totality narrated in its visual art. Ultimately, she concludes, the inherent ambiguity of the colonial body and its spaces brought chaos to all dreams of order.

Table of Contents

• List of Illustrations
• Acknowledgments
• Introduction: Visual Practices in Late-Colonial Mexico
• Chapter One: Identity by Appearance, Judgment, and Circumstances: Race as Lineage and Calidad
• Chapter Two: The Faces and Bodies of Eighteenth-Century Metropolitan Mexico: An Overview of Social Context
• Chapter Three: Envisioning the Colonial Body
• Chapter Four: Regulating and Narrating the Colonial Body
• Chapter Five: From Popolacho to Citizen: The Re-vision of the Colonial Body
• Epilogue: Dreams of Order
• Notes
• Glossary
• Bibliography
• Index

The Lost German Slave Girl: The Extraordinary True Story of Sally Miller and Her Fight for Freedom in Old New Orleans

Grove/Atlantic, Inc.
November 2005
288 pages
Paperback ISBN-13: 978-0-8021-4229-0

John Bailey

It is a bright, spring morning in New Orleans, 1843. In the Spanish Quarter, on a street lined with flophouses and gambling dens, Madame Carl Rouff recognizes a face from her past. It is the face of Salomé Müller, her best friend’s daughter who disappeared twenty-five years earlier. But the young olive-skinned woman claims her name is Mary Miller—she is the property of a Frenchman who owns a nearby cabaret. She is a slave, with no memory of a “white” past, or of the Müller family’s perilous journey from its German village to New Orleans. And yet her resemblance to her mother is striking, and she bears two telltale birthmarks. Had a defenseless European orphan been callously and illegally enslaved, or was she an imposter? So began one of the most celebrated and sensational trials of nineteenth-century America.

In brilliant novelistic detail, award-winning historian John Bailey reconstructs the exotic sights, sounds, and smells of mid-nineteenth-century New Orleans, an “infernal motley crew” of cotton kings, decadent river workers, immigrants, and slaves. Miller’s dramatic trial offers an eye into the fascinating laws and customs surrounding slavery, immigration, and racial mixing. Did Miller, as her relatives sought to prove, arrive from Germany under perilous circumstances as an indentured servant or was she, as her master claimed, part African and a slave for life? The trial pits a humble community of German immigrants against Mary’s previous owner, John Fitz Miller, a hardened capitalist who is as respected by the community for his wealth and power as he is feared and distrusted, and his attorney, John Randolph Grymes, one of the brashest and most flamboyant lawyers of his time. Was Sally Miller’s licentious lifestyle proof that she was part African, as the defense argued? Or was she the victim of a terrible injustice? Bailey follows the case’s incredible twists and turns all the way to the Supreme Court, and comes to a shocking conclusion.

A tour de force of investigative history that reads like a suspense novel, The Lost German Slave Girl is a fascinating exploration of slavery and its laws, a brilliant reconstruction of mid-nineteenth-century New Orleans, and a riveting courtroom drama. It is also an unforgettable portrait of a young woman in pursuit of freedom.

The Dispossessed: Cultural Genocide of the Mixed-Blood Utes: an Advocate’s Chronicle

University of Oklahoma Press
May 1998
384 pages
9 x 6.1 x 1.1 inches
ISBN-10: 0806130431; ISBN-13: 978-0806130439

Parker M. Nielson

This book is out of print.

In The Dispossessed, Parker M. Nielson chronicles the tragic story of the mixed-blood Utes. A leading Utah attorney, Nielson represented this group in its suit against the U.S. government, decided by the Supreme Court in 1972. Although the Court determined that the mixed-bloods had been defrauded, it declined to restore their property. Basing his account on extensive research as well as his own firsthand experience, Nielson brings to light for the first time the disturbing events that led up to the landmark decision.

Deprived of their native lands in central Utah by immigrant Mormons, the mixed-blood Utes—almost exclusively members of the Uintah band—were confined to a reservation in eastern Utah, with a promise from the U.S. government that the land would be theirs alone forever. This promise was not kept. The final blow was the Termination Act, enacted in the early 1950s. Designed to end government supervision of American Indians and the obligation of federal entitlements, its consequences for the mixed-blood Utes—as well as for many other Indian groups—were devastating, for it deprived them of their assets, land, and very way of life.

Drawing in particular on the testimony of individual Utes affected by the termination policy, Nielson discloses the broken promises and backhanded schemes perpetuated by government officials and the Utes’ own lawyers, whose motives were compromised by self-interest. The author thus explores an all-too-neglected subject: the role of tribal attorneys in influencing tribal histories.

Freedom Papers: An Atlantic Odyssey in the Age of Emancipation

Harvard University Press
February 2012
288 pages
6-1/8 x 9-1/4 inches
17 halftones, 1 line illustration, 1 map
Hardcover ISBN 9780674047747

Rebecca J. Scott, Charles Gibson Distinguished University Professor of History and Professor of Law
University of Michigan

Jean M. Hébrard, Historian and Visiting Professor
École des Hautes Études en Sciences Sociales (Paris)
University of Michigan

Around 1785, a woman was taken from her home in Senegambia and sent to Saint-Domingue in the Caribbean. Those who enslaved her there named her Rosalie. Her later efforts to escape slavery were the beginning of a family’s quest, across five generations and three continents, for lives of dignity and equality. Freedom Papers sets the saga of Rosalie and her descendants against the background of three great antiracist struggles of the nineteenth century: the Haitian Revolution, the French Revolution of 1848, and the Civil War and Reconstruction in the United States.

Freed during the Haitian Revolution, Rosalie and her daughter Elisabeth fled to Cuba in 1803. A few years later, Elisabeth departed for New Orleans, where she married a carpenter, Jacques Tinchant. In the 1830s, with tension rising against free persons of color, they left for France. Subsequent generations of Tinchants fought in the Union Army, argued for equal rights at Louisiana’s state constitutional convention, and created a transatlantic tobacco network that turned their Creole past into a commercial asset. Yet the fragility of freedom and security became clear when, a century later, Rosalie’s great-great-granddaughter Marie-José was arrested by Nazi forces occupying Belgium.

Freedom Papers follows the Tinchants as each generation tries to use the power and legitimacy of documents to help secure freedom and respect. The strategies they used to overcome the constraints of slavery, war, and colonialism suggest the contours of the lives of people of color across the Atlantic world during this turbulent epoch.

White Supremacists from 1920s Still Thwarting Virginia Tribes

Indian Country Today Media Network
2011-04-26

Tanya Lee

Congress is once again considering legislation that would grant federal recognition to six of Virginia’s 11 state-recognized American Indian tribes—the Chickahominy, Chickahominy Eastern Division, Nansemond, Rappahannock and Upper Mattaponi tribes and the Monacan Indian Nation. Chief Gene Adkins of the Eastern Chickahominy Tribe said, “We have been working on federal recognition for about 10 years. It is hard for me to understand why it has not gone through like we hoped.”

Virginia Democrat Rep. Jim Moran, sponsor of the House bill that would recognize the tribes, said he introduced the legislation to correct a “travesty of justice. The Virginia Indian tribes have been treated as unjustly as any tribe in the country, and that’s saying a lot. These are the tribes that helped the first English settlers in North America survive. Of all the tribes, they should have been recognized.”

There are three routes to federal recognition—administrative, judicial and legislative, explained Wayne Adkins, president of the Virginia Indian Tribal Alliance for Life and second assistant chief of the Chickahominy Tribe. “The administrative route is very expensive. It’s a long process. Tribes gather documents, the Bureau of Indian Affairs (BIA) reviews them and tells tribes what other documents they need, then it’s get in line behind all the other tribes seeking recognition. It could take 30 years and cost $1 million per tribe. Most tribes going for recognition just don’t have that kind of money.”

Walter Ashby Plecker, said Wayne Adkins, is another big reason why going through the BIA process would be difficult for the Virginia tribes. “When Native Americans were given the right to vote [in 1924], Virginia adopted racially hostile laws,” Moran explained. The laws targeted blacks—and, by a quirk of logic—American Indians. Virginia’s Racial Integrity Act of 1924 was one of the most restrictive in the nation, but it was not the only one—30 states passed similar legislation.

Plecker, registrar of the Virginia Bureau of Vital Statistics from 1912-1946, was instrumental in crafting that state’s law. He argued that there were no full-blooded Indians left in the state by the early 20th century; therefore, all who claimed Indian heritage were part something else, and he decided the best thing to do would be to lump them in with blacks, since, by his mandate as registrar, a person could claim only one of two racial backgrounds in Virginia: Caucasian or “Negro.” People claiming to be Indians, Plecker said, were r­eally blacks trying to move their families into a position where they could “pass,” or claim to be Caucasian.

Virginia’s Racial Integrity Act of 1924 outlawed miscegenation, and its intent, quite simply, was to keep Anglo-Saxon blood pure. Wrote Plecker: “For the purpose of this act, the term ‘white person’ shall apply only to the person who has no trace whatsoever of any blood other than Caucasian.… The [terms] ‘Mixed,’ ‘Issue,’ and perhaps one or two others, will be understood to mean a mixture of white and black r­aces, with the white predominating. That is the class that should be reported with the greatest care, as many of these are on the borderline, and constitute the real danger of race intermixture.”…

…Though Social Darwinism and eugenics originated in England, their real champions at the beginning of the 20th century were Americans. Plecker was a zealous eugenicist, advocating both a­nti-miscegenation laws and sterilization of the “unfit,” while also proselytizing that Caucasians and non-Caucasians should be kept separated. As part of his work in the Virginia Statistics Office, he eradicated records of Indian births and marriages in order to support his directive that all Indians were to be categorized as blacks. These are the very records that Virginia’s Indian tribes now need in order to receive federal recognition. Other records of tribal significance were destroyed in fires….

Read the entire article here.

Professor Daniel J. Sharfstein to be Featured Guest on Mixed Chicks Chat

Mixed Chicks Chat (The only live weekly show about being racially and culturally mixed. Also, founders of the Mixed Roots Film & Literary Festival) Hosted by Fanshen Cox, Heidi W. Durrow and Jennifer Frappier
Website: TalkShoe™ (Keywords: Mixed Chicks)
Episode: #230 – Professor Daniel Sharfstein
When: Wednesday, 2011-10-26, 21:00Z (17:00 EDT, 14:00 PDT)

Daniel J. Sharfstein, Professor of Law
Vanderbilt University

Daniel Sharfstein is the author of The Invisible Line: Three American Families and the Secret Journey from Black to White.

Selected Bibliography:

• The Invisible Line: Three American Families and the Secret Journey from Black to White. New York: Penguin Press, 2011. 415 pp. Hardcover ISBN: 9781594202827.
•  “Crossing the Color Line: Racial Migration and the One-Drop Rule, 1600–1860,” Minnesota Law Review, Volume 91, Number 3 (February 2007): 592-656.
• “The Secret History of Race in the United States,” The Yale Law Journal, Volume 112, Issue 6 (March 2003): 1473-1509.
• “Passing Fancy,” Legal Affairs – The Magazine at the Intersection of Law and Life (September/October 2003).

Listen to the interview here. Download the episode here.

Documentary Genocide: Families Surnames on Racial Hit List

Richmond Times-Dispatch
2000-03-05

Peter Hardin, Former Washington Correspondent
 
Long before the Indian woman gave birth to a baby boy, Virginia branded him with a race other than his own.
 
The young Monacan Indian mother delivered her son at Lynchburg General Hospital in 1971. Proud of her Indian heritage, the woman was dismayed when hospital officials designated him as black on his birth certificate. They threatened to bar his discharge unless she acquiesced. The original orders came from Richmond generations ago.
 
Virginia’s former longtime registrar of the Bureau of Vital Statistics, Dr. Walter Ashby Plecker, believed there were no real native-born Indians in Virginia and anybody claiming to be Indian had a mix of black blood.
 
In aggressively policing the color line, he classified “pseudo-Indians” as black and even issued in 1943 a hit list of surnames belonging to “mongrel” or mixed-blood families suspected of having Negro ancestry who must not be allowed to pass as Indian or white.
 
With hateful language, he denounced their tactics.
 
“ . . . Like rats when you are not watching, [they] have been ‘sneaking’ in their birth certificates through their own midwives, giving either Indian or white racial classification,” Plecker wrote.
 
Twenty-eight years later, the Monacan mother’s surname still was on Plecker’s list. She argued forcefully with hospital officials. She lost…

…“It’s not that we’re trying to dig him [Plecker] up and re-inter him again,” said Gene Adkins, assistant chief of the Eastern Chickahominy Tribe.
 
“We want people to know that he did damage the Indian population here in the state. And it’s taken us years, even up to now, to try to get out from under what he did. It’s a sad situation, really sad.”
 
Said Chief William P. Miles of the Pamunkey Tribe: “He came very close to committing statistical genocide on Native Americans in Virginia.”…

Read the entire article here.