Mixed Race Studies

The Multiracial Epiphany of Loving

Fordham Law Review
May 2008, Volume 76, Number 6
pages 2709-2733

Kevin Noble Maillard, Associate Professor of Law
Syracuse University

The year 1967 becomes the temporal landmark for the beginning of an interracial nation. That year, the United States Supreme Court ruled state antimiscegenation laws unconstitutional in Loving v. Virginia. In addition to outlawing interracial marriage, these restrictive laws had created a presumption of illegitimacy for historical claims of racial intermixture. Not all states had antimiscegenation laws, but the sting of restriction extended to other states to forge a collective forgetting of mixed race. Defenders of racial purity could depend on these laws to render interracial relationships illegitimate. Looking back to Loving as the official birth of Multiracial America reinforces the prevailing memory of racial separatism while further underscoring the illegitimacy of miscegenations past. By establishing racial freedom in marriage, Loving also sets a misleading context for the history of mixed race in America. Even though Loving instigates the open acceptance of interracialism, it unintentionally creates a collective memory that mixed race people and relationships did not exist before 1967. To imagine and realize a pre-1967 miscegenated America directly challenges the legal legitimacy of the racial reality that antimiscegenation law attempted to enforce. I approach this subject by examining contemporary claims of mixed race that are rooted in the past. This conflict usually entails opposing narratives: one venerating the involvement of a prominent historical figure as party to an interracial relationship; the other steadfastly holds that such claims are unfounded as specious. Placing miscegenation upon narratives and figures that are faintly characterized and understood as racially white turns private claims of mixed identity into public contemplations of interracial intimacy. To imagine historic figures as “Founding Fathers” of another sort destabilizes an implicit understanding of ingrained racial limitations.

..This essay takes issue with the overemphasis on Loving as the enabler for mixed race in the United States, and concomitantly, its effect on legitimating a varied interracial past. Gary Nash’s thesis demonstrates a notable irony: if our just, democratic system openly permits and justifies the “happening thing” of mixed race, why is this same valorization and recognition not extended to the pre-Loving era? Turning to a single court case to celebrate a social phenomenon that has existed at the margins of American culture mistakenly erases the past of racial amalgamation that preexisted the legality that Loving provided. In the system of the racial binary that has been established in the United States, mixtures that disrupt the notion of racial purity, particularly those that originate in the time period before Loving, are presumed to be deviant and abnormal. The collective racial memory in the United States, unlike that of Mexico or Brazil, operates from an assumption of racial purity and sexual avoidance of miscegenation. This national culture of disbelief of racial intermixture has permeated our views of history and law.

This essay argues that looking to Loving as the birthplace of interracialism reinforces the legal authority and resultant legacy of the antimiscegenation regime that it replaced. In addition to outlawing interracial marriage, these restrictive laws created a lasting presumption of illegitimacy for historical claims of racial intermixture. Defenders of racial purity could depend on these laws to render interracial relationships, whether married or unmarried, improbable and illegitimate. Not all states had antimiscegenation laws, but the sting of restriction extended to other states, forging a collective forgetting and denial of the existence of mixed race. The absence of a national, judicial acceptance of mixed race facilitated a collective belief in racial purity. Because it was illegal and immoral, it could not have occurred. As states were withholding the marital right from biracial couples, they attempted to deny and erase the intimate reality of persons, like Richard and Mildred Loving,who would have sought alternatives to the prohibitive law…

Read the entire article here.

The Anatomy of Grey: A Theory of Interracial Convergence

College of Law Faculty Scholarship
Paper 74
January 2008
56 pages

Kevin Maillard, Associate Professor of Law
Syracuse University

Janis L. McDonald, Professor of Law
Syracuse University

This article offers a theory of racial identity divorced from biological considerations. Law fails to recognize the complexity of racial performance and identity, thus categorically simplifying a perceived polarity of black and white. Ground-breaking scholarship addressing racial boundaries, as written by Randall Kennedy, Elizabeth Bartholet, and Angela Onwuachi-Willig, generally focuses on the enduring legacy of race discrimination. We approach these boundaries from a different angle—whites who become “less white.” We bring together the challenges of passing and adoption to offer a theory of fluid racial boundaries.

Transracial adoption provides one viable channel to discuss the possibilities of white-to-black racial identity transformation. By confronting the meaning of white identity in relation to their black surroundings, adoptive parents may engage along a continuum of what we term “interracial convergence.” Parents who adopt transracially potentially face some of the pressures of being black in the United States. The Interethnic Placement Act forbids the consideration of race in adoption placements, but white adoptive parents nevertheless receive sharp criticism from black social workers for lacking the ability to teach “survival skills” necessary for the child’s racial identity development. We argue, alternatively, that it creates a grey space where racial convergers—adoptive parents and racial passers—can challenge the stability of racial boundaries.

TABLE OF CONTENTS

• I. Introduction
• II. Invisible Racial Connections
  • A. Racial Defection
  • B. Racial Intentions And Performance
  • C. The Performativity Of Passing
• III. White Racial Identity Development
  • A. Colorblindness
  • B. Willful Racial Ignorance
• IV. White Parents: Black Children: Racial Performativity
• V. Transformative White Identity: Interracial Convergence
  • A. The Pre-Encounter Stage
  • B. Encounter and Disorientation
    • a) Initial Racial Disorientation
    • b) Awareness of Repetitive Racial Incidents
    • c) Reckoning with Privilege
  • C. Augmenting a White Racial Identity
• VI. Conclusion: Interracial Convergence

I. INTRODUCTION

In 1998, Boston city authorities terminated the eleven-year employment of two firefighters who had falsified their employment applications. Twin brothers, Philip and Paul Malone, transformed themselves from white to black on their applications in order to benefit from a federal diversity program. Although their family had identified as white for three successive generations, the brothers claimed their black ancestry from their maternal great-grandmother. They relied on the traditional, although controversial rule in law and social practice of hypo-descent, or the “one-drop” rule, to justify their status. A hearing officer held that the twin brothers, who had lived most of their lives as white, “willfully and falsely identified themselves as black in order to receive appointments to the department.” The officer based her determination of their racial identity on three criteria: visual observation of facial features, documentary evidence, and social reputation of the families. Under this test, the Malones failed to qualify as “black.” In a different case, a Pennsylvania social service agency failed to approve a potential adoption placement for Dante, a biracial black/white child, with his white foster parents, Victor and Mary Jane DeWees. Before the family accepted Dante as a foster child Mrs. DeWees expressed to a social worker that she preferred a white child because she “did not want people to think that [she] or her daughter were sleeping with a black man.” The social service agency based their denial on the DeWees’ negative racial attitudes, which they believed conflicted with Dante’s best interests. In return, the foster parents argued that their views had changed in the two years that they fostered Dante and they were ready to “accept [him] as any other child.” Nevertheless they did not view race as important to Dante’s upbringing: they informed the social worker that race had “no impact” on the self-esteem and identity of minority children, and refused “to manufacture black friends.” Challenging the relevance of the child’s racial identity, Mr. and Mrs. DeWees brought suit against the agency in federal court.

Both Malone and DeWees demonstrate the inherent difficulties of rigid racial categorization. The two forms of racial subversion we examine here, passing and transracial adoption, effectively question the rigidity of racial boundaries. While passing facilitates the secret transference of racial membership, adoption across the color line compels an open form of interracial kinship. Both require a journey into unfamiliar racial territory which reorients racial identity from a biological status to a performative measurement based on the choices made by the individuals involved…

…Both cases present potential situations where transracial adoption and racial passing intersect in some ways. Passing, for those persons born as white, means confronting unearned racial privilege inherited at birth. This article seeks to expand on traditional discussions of passing by offering a theory of racial identity divorced from biological considerations. Law fails to recognize the complexity of racial performance and identity, thus categorically simplifying a perceived polarity of black and white. While the majority of passing scholarship focuses on the enduring legacy of white supremacy, much less work focuses on whites relinquishing the trappings of race privilege—whites who become “less white.” This discourse, as it stands, lacks a rigorous examination of the ways that whites might join this destabilization of racial boundaries…

…This Article proceeds in four parts. Section One addresses traditional racial “passing,” where necessary subterfuge and identity performance undermined socially identified and controlled racial divisions. In this cautious challenge to the biological essence of white identity, passers expose the different ways that white identities could be performed. Section Two introduces the continuum of white identity development, beginning with a “pre-encounter,” stage of racial awareness. The section examines the contributing role of colorblindness and racial recklessness in supporting the existence of a pre-encounter stage. Section Three introduces the application of interracial convergence into the transracial adoption debate as it relates to considerations of the child’s need to develop a healthy black racial identity. Recent changes in federal adoption law require a colorblind placement process, which eliminates scrutiny of the racial attitudes of the adoptive parents. The DeWees parents, despite their deliberate ignorance of their foster child’s racial needs, might have been approved under these new interpretations of the law. Section Four identifies the potential stages of a transformative white identity for adoptive parents. Our model identifies stages that progress from a colorblind, preencounter stage, followed by a disorienting racial encounter stage, to various stages that recognize the role of white privilege, progressing toward a stage of interracial convergence and, perhaps, a new, transformative white identity…

Read the entire paper here.

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

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

Kevin Maillard, Associate Professor of Law
Syracuse University

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

Cara Cowan-Watts, Acting Speaker
Cherokee Nation Tribal Council

Rose Cuison Villazor, Associate Professor of Law
Hofstra University

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

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

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

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

Introduction

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

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

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

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

Read the entire debate here.

Half-Hearted Loving

The Faculty Lounge: Conversations about law, culture, and academia
2011-06-13

Kevin Maillard, Associate Professor of Law
Syracuse University

Yesterday, June 12, marked the annual celebration of Loving Day.  This event commemorated the 1967 Supreme Court case of Loving v. Virginia, which invalidated the state’s Racial Integrity Act that prohibited interracial marriages.  Notably, Virginia’s law was only one of many state interracial bans.  In the mid-twentieth century, 30 states had some form of mixed marriage prohibition, all struck down by Loving in one fell swoop.  In this momentous decision, the Court paved the way for all Americans to determine their intimate associations without regard to race.

More than forty years later, interracial intimacy—dating, cohabitation, and marriage—continues to go against the norm, rather than be a part of it. The 2010 Census reports that less than eight percent of all marriages are between people of different races, with slightly higher rates for cohabitating couples.  Multiracial people remain a very small part of the national population, just under three percent in 2010…

…However, the Loving case was not the Moses that parted the racial sea, ushering in multihued phalanxes of diversity. In a modern world where people are free to make their own choices, partner selection has not changed much.   Of course, a single case like Loving is not going to convert every American into the Temple of Miscegeny, and mandate interracial kumbayahs for everyone of dating age.  In the same way that the legalization of gay marriage would not unearth a wellspring of same-sex desire, a change in law does not automatically transform personal preferences…

Read the entire article here.

The Pocahontas Exception: The Exemption of American Indian Ancestry from Racial Purity Law

bepress Legal Series
Working Paper 1572
2006-08-18
47 pages

Kevin N. Maillard, Associate Professor of Law
Syracuse University

“The Pocahontas Exception” confronts the legal existence and cultural fascination with the eponymous “Indian Grandmother.” Laws existed in many states that prohibited marriage between whites and nonwhites to prevent the “quagmire of mongrelization.” Yet, this racial protectionism, as ingrained in law, blatantly exempted Indian blood from the threat to white racial purity. In Virginia, the Racial Integrity Act of 1924 made exceptions for whites of mixed descent who proudly claimed Native American ancestry from Pocahontas. This paper questions the juridical exceptions made for Native American ancestry in antimiscegenation statues, and analyzes the concomitant exemptions in contemporary social practice. With increasing numbers of Americans freely and lately claiming Native ancestry, this openness escapes the triumvirate of resistance, shame, and secrecy that regularly accompanies findings of partial African ancestry. I contend that antimiscegenation laws such as the Racial Integrity Act relegate Indians to existence only in a distant past, creating a temporal disjuncture to free Indians from a contemporary discourse of racial politics. I argue that such exemptions assess Indians as abstractions rather than practicalities, which facilitates the miscegenistic exceptionalism as demonstrated in Virginia’s antimiscegenation statute.

Table of Contents

• I. INTRODUCTION
• II. ADVOCATING INDIAN-WHITE INTERMIXTURE
  • A. Support from the Founding Fathers
  • B. Assimilation Schemes and the Dawes Allotment Act
• III. EUGENICS AND THE RACIAL INTEGRITY ACT OF 1924
  • A. The Growth of the Eugenics Movement
  • B. Fear Ingrained in Law: The Racial Integrity Act
  • C. Accommodating the Elite: Redefining the Parameters of Whiteness
• IV. THE LEGEND OF POCAHONTAS
• V. THE VANISHING INDIAN
  • A. The Indian Grandmother Complex: A Different Kind of Birth for the Nation
  • B. To the Margins of Society: The Non-Threat of Indian Blood
  • VI. CONCLUSION

Read the entire article here.

The Color of Testamentary Freedom

Southern Methodist University Law Review
Volume 62
p. 1783
2009

Kevin Noble Maillard, Associate Professor of Law
Syracuse University

Wills that prioritize the interests of nontraditional families over collateral heirs test courts’ dedication to observing the posthumous wishes of testators. Collateral heirs who object to will provisions that redraw the contours of “family” are likely to profit from the incompatibility of testamentary freedom and social deviance. Thus, the interests of married, white adults may claim priority over nonwhite, unmarried others. Wills that acknowledge the existence of moral or social transgressions—namely, interracial sex and reproduction—incite will contests by collateral heirs who leverage their status as white and legitimate in order to defeat testamentary intent.

This Article turns to antebellum and postwar will contests between disinherited white heirs and mixed-race devisees to question the role of courts in defining “family” and the expectancy of collaterals to uphold this limitation. While other studies have separately examined the myth of testamentary freedom and argued for the legitimacy of diverse families, scholars have paid less attention to the color of inheritance. Drawing on Cheryl Harris’s groundbreaking work on property and racial expectation interests, this Article illustrates the centrality of whiteness in the validation of testamentary transfers. At the same time, it questions the legal resistance to nontraditional families, which substantially weakens the aspirational theory of donative freedom—the cornerstone of Trusts & Estates. Through the intersection of wills law and family law, this Article initiates a critical inquiry of the influence of race in testamentary transfers.

Read the entire article here.

Slaves in the Family: Testamentary Freedom and Interracial Deviance

2008
50 pages

Kevin Noble Maillard, Associate Professor of Law
Syracuse University

This Article addresses the deviance of interracial sexuality acknowledged in testamentary documents. The language of wills calls into question the authority of probate and family law by forcing issues of deviance into the public realm. Will dramas, settled in or out of court, publicly unearth insecurities about family. Many objections to the stated intent of the testator generate from social prejudices toward certain kinds of interpersonal relationships: nonmarital, homosexual, and/or interracial. When pitted against an issue of a moral or social transgression, testamentary intent often fails. In order for these attacks on testamentary validity to succeed, they must be situated within an existing juridical framework that supports and adheres to the hegemony of denial that refuses to legitimate the wishes of the testator. Disinherited white relatives of white testators regularly challenged wills disposing a majority of an estate to paramours and children of African descent. In the nineteenth century, testators who eschewed traditional devises to spouses, relatives, and institutions in favor of mistresses, slaves, or both often incited will contests of testamentary incapacity, undue influence, or fraud. This Article is a case study of In Re Remley, an antebellum will contest between disinherited white collateral heirs and the intended black and mulatto devisees. It retains timeless value in its demonstration of the incompatibility of testamentary freedom and social deviance. I conclude that subjective conceptions of kinship, in particular those unpopular relationships that defy social norms, prevent the idea of testamentary freedom from reaching diverse articulations of family.

Read the entire article here.