Mixed Race Studies

Batson Revisited in America’s “New Era” of Multiracial Persons

Seton Hall Law Review
Volume 33, Issue 1 (2003)
Article 3
pages 67-108

John Terrence A. Rosenthal

Since two bloods course within your veins, Both Jam’s and Japhet’s intermingling; One race forever doomed to serve, The other bearing freedom’s likeness.
—Poem from Jacob Steendam to his multiracial son

It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the government of the United States, which gives to bigotry no sanction—to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.
—Letter from President George Washington to the Hebrew Congregation of Newport, Rhode Island (Sept. 9, 1790)

I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.
—Letter from Thomas Jefferson to Thomas Paine (1789)

INTRODUCTION

From the time of this country’s founding, America has always been a multiracial society. In the coming decades, America’s racial and ethnic diversity will continue to increase. The 2000 Census evidences the present and coming racial complexity. Mandated by the Constitution, this decennial census, for the first time allowed individuals to chose more than one race in identifying their racial heritage. The preliminary results of the 2000 Census show that the number of individuals claiming multiracial status is not insignificant. As many as 2.4 percent of our nation’s citizens consider themselves multiracial; and in California, the nation’s most populace state, the percentage is 4.7.

Given our society’s historical penchant for discrimination against minority racial groups, persons of multiracial backgrounds do and will continue to face many of the same problems related to racial discrimination that other minority racial groups in our country have historically faced. These problems include, employment discrimination, housing discrimination, and discrimination in the administration of our criminal justice system. Due to the difficulty often associated with distinguishing which racial groups multiracial individuals belong to or derive from, the problems of discrimination will present these people with unique, and often unrecognized and unaddressed problems. This Article will address one of these potential problems, which is associated with the administration of the criminal justice system: discrimination based on race in the use of peremptory challenges during the selection of jurors.

This country has an extensive history of racial discrimination in the context of the jury selection process. Although both the courts and legislatures have attempted to deal with the problem of racial discrimination in the jury selection process, the solutions provided do not solve the problem for those persons of multiracial descent who may not be readily identified or perceived as racial minorities. In particular, it is a challenge for society to prevent the racially discriminatory use of peremptory challenges in the jury selection process, if only one side in the litigation recognizes a multiracial potential juror as being multiracial and discriminates based on that person’s racial makeup. What if a juror is dismissed from the jury pool by one side due to his or her racial heritage, but neither the other side nor the judge recognizes the discrimination because the racial makeup of the juror is not readily apparent to either?

The present jury selection process, mandated by Batson v. Kentucky to address racial discrimination in the use of peremptory challenges, depends upon the ability of the judge and the attorneys for both sides to perceive the racial makeup of the potential juror. Only then will one party be on notice of the possibility of racial discrimination and raise the proper challenge. If this party does not recognize the dismissed person as being of multiracial descent, then the constitutional violation goes undiscovered and unremedied. Therefore, Batson, as it is presently structured and enforced, may not, and most likely will not solve the problem of racial discrimination in the use of peremptory challenges to exclude multiracial persons from juries.

In Part I, the Article will review the legal and societal history of racial discrimination against multiracial individuals in our country. Part II will then examine the historical problem of racial discrimination in the context of the jury selection process and describe the present judicial remedy used to address this problem. In Part III, the Article will discuss the results of the 2000 Census, the implications of this data with regard to the racial make-up of juries, and how these data and anecdotal evidence suggest the existence of a unique problem of racial discrimination against multiracial individuals in the jury selection process. Finally, Part IV will suggest some potential remedies for this “vexing” problem…

Read the entire article here.

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

I. INTRODUCTION

“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.