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

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

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

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


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 Although the rule has been repealed from the statutory compilations of law in those states that once had such a rule, it continues to operate on a cognitive and cultural level in American law and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

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

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

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

Read the entire essay here.

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