Monday, May 20, 2019


Excerpted from: Bethany R. Berger, Red: Racism and the American Indian, 56 UCLA Law Review 591 (February, 2009) (421 Footnotes) (Full Document)


BethanyRBergerWhat is the role of race, and particularly of racism, in American Indian law and policy? This question is particularly pressing today, as national attention focuses on the efforts of the Cherokee to limit their membership to those with Cherokee or Delaware blood, the U.S. Supreme Court continues to reduce tribal jurisdiction over non-Indians, and the recent Bush Administration has blocked recognition of Native Hawaiian sovereignty on the grounds that it is impermissibly race based. Although the federal government has wide constitutional discretion to implement its obligations to native people, in these and other places, questions of race continue to haunt Indian policy.

These questions become more difficult to answer because of the American tendency to measure racism according to its particular manifestations with respect to African Americans: slavery, control of labor, and the social segregation and classification of individuals according to descent. Although this paradigm obscures even the realities of black-white racism, it is particularly inadequate with respect to Indian-white relations, which since colonial days have not focused on the control of Indian labor, and have, at their most coercive, announced a goal of Indian assimilation. This paradigm also creates unease with federal Indian law and policy, which to a great extent focus on the rights of tribes whose membership depends in part on descent.

This Article posits a new understanding of the way racism works in Indian law and policy. I argue that although racism has been a persistent factor in Indian policy since very early in European American-American Indian relations, it has generally worked in very different ways than it does for African Americans. These differences do not mean that this is a story of de-racing. Unlike Latin Americans, who shifted from nonwhite to white and back again in U.S. law, or Southern European immigrants, who shifted from nonwhite to white, Indian people have been consistently regarded as a separate race since the 1700s--the red in the North American box of colors. Because the meanings of race derive from the material, social, and ideological circumstances that generate them, however, the distinctive circumstances of Indian-white relations gave rise to very different notions and uses of Indian difference.

European Americans were not primarily concerned with using Indian people as a source of labor, and so did not have to theorize Indians as inferior individuals to justify the unfair terms of that labor. Rather, colonists' primary concern with respect to Indians was to obtain tribal resources and use tribes as a flattering foil for American society and culture. It was therefore necessary to theorize tribal societies as fatally and racially inferior while emphasizing the ability of Indian individuals to leave their societies and join non-Indian ones. Throughout the most oppressive periods of Indian policy (and at the height of violent segregation of African Americans), policymakers continued to emphasize the need to encourage Indians to leave their tribes and assimilate with white society. At the same time, Indian tribes, regardless of their degree of actual conformity to non-Indian ideals, as well as Indians who followed the supposedly inborn urge to cling to tribal ways, were viewed as being fixed in the backward patterns of blood and habit, and doomed to disappear or to be destroyed.

There are of course situations in which discrimination against American Indians accords with classical paradigms of racism. Indians have been denied the right to vote, attend schools with or marry whites, eat at restaurants, stay at hotels, or get jobs because of their race. Like African Americans, native people have been lynched, raped, and had their homes burnt out from under them because of their race. In some parts of the country, Indian people are “timber niggers” or “prairie niggas,” the necessarily inferior economic and social group. Throughout the United States, moreover, Native Americans fall at the bottom of assessments of education, health status, and income, and at the top of assessments of crime victimization and incarceration. But if one identifies racism only by the appearance of such paradigmatic manifestations, one would elide some of the most important ways that notions of Indian inferiority have been constructed and used.

One moment in time is illustrative. The end of the nineteenth century and beginning of the twentieth were one of the most coercive and racist periods in Indian law. This was the era of Wounded Knee, in which the Seventh Cavalry shot down scores of unarmed Lakota women and children. It was the era of allotment, in which the federal government declared two-thirds of Indian lands surplus and divided the rest among individual households to force them to farm and to overcome what was seen as their distaste for hard labor. It was also the period of the Indian boarding schools, which separated children from their parents for years in order to “kill the Indian . . . to save the man.” In case there was any doubt that notions of Indian race played a role in these policies, Theodore Roosevelt, who would soon become president, wrote triumphantly of the process through which the continent had “pass[ed] out of the hands of [its] aboriginal owners, and become the heritage of the dominant world races.”

But other aspects of the treatment of Indians during this period could result in the opposite conclusion, that Indian people were not the victims of racism at all. In the same period that sexual contact between blacks and whites was the surest way to raise a lynch mob to fury, intermarriage between Indians and whites was advocated by prominent policy makers and even rewarded by Congress under certain circumstances. And while the segregationist Jim Crow era closed its iron grip around African Americans, graduates of federal Indian boarding schools received university scholarships, Indian artists ran movie studios and starred in operas at Carnegie Hall, and Indian ballplayers played on both teams in the 1911 World Series. Throughout this period, moreover, much of the starkest oppression suffered by Indian people was publicly justified by the supposed need to integrate them.

Despite the recent flourishing of scholarship on race and American Indians, the discrepancies between our classical understanding of racism and treatment of American Indians have not been examined thoroughly. The most visible scholarship, in particular that of Ward Churchill, focuses on the tools of racism familiar from black-white relations, such as attention to quantum of Indian blood, but fails to acknowledge the different meanings of blood quantum in black-white and Indian-white contexts. Robert Williams, the foremost legal scholar on Indian race, identifies the ways that assumptions of Indian inferiority help to shape federal Indian law, but anachronistically identifies racist assumptions in early Middle Ages preracial thought, and does not tie his insights to treatment of other racialized groups in the United States. Sometimes efforts to make racism toward Indians look like racism toward African Americans reach ludicrous proportions. Deborah Rosen's 2007 book on American Indians and state law, the first to try to systematically catalog state laws classifying Indians, declares that “most states proscribed intermarriage between Whites and Indians, as they prohibited Whites and Blacks to intermarry,” one page before she notes that only a handful of states prohibited Indian-white marriage in the nineteenth century compared to the majority that prohibited black-white marriage.

Historians who do acknowledge the discrepancies between treatment of Indians and paradigmatic understandings of race often classify such divergences as the result of a period before racism toward Indians, and identify some moment-- typically one with significance for black-white racism--at which Indian policy became, and remained, racist. Thus, Alden T. Vaughan, an expert in colonial Indian history, claims that racism began in the 1700s when Indians were assigned the skin color red, and subsequently continued full force. William McLoughlin, in his otherwise brilliant histories of the Cherokee Nation, suggests that the Cherokee removal crisis of the 1820s and early 1830s reflects a new moment in which Indian policy was infected by scientific racism. Reginald Horsman also attributes a new racist turn regarding Indians to scientific racism, but places this moment over a decade later, in the 1840s origins of the Reservation Era, in which tribes were confined on reservations to be groomed for civilization under the control of federal Indian agents. Just as racist oppression of African Americans began before each of these moments, so did racist justifications for oppression of native governments. More important, the anomalies in the form and rationale for oppression of American Indians existed after each moment these accomplished scholars designate as the inception of racism.

This Article covers a broader historical swath to illustrate the distinctive ways that notions of Indian racial inferiority developed and were used. This history shifts back and forth between law, culture, and politics, showing how each shapes and is shaped by the others. I cannot hope to explain the manifestations of racism at all times with respect to all American Indian groups. Experiences of racism shift widely across tribes and eras of interaction; this Article can only identify patterns, leaving the rich divergences for future scholarship. Although the particular manifestations of racism vary across different periods, patterns emerge across the eras as tribes are reinscribed as inferior, limited, and defined by their race to justify limiting tribal independence and controlling Indian people. Identification of these patterns allows us to see the ways that they reappear to the present day in policy debates, in popular protests, and in the Supreme Court.

The Article often draws comparisons with the treatment of African Americans, and to a lesser extent other racialized groups, showing both the contrasts and links between these processes of racialization. Although I do not argue that racist treatment of American Indians and African Americans proceeded along parallel tracks, there are odd confluences in these eras. The Allotment and Assimilation Period of the 1870s to 1920s, for example, when two-thirds of tribal lands were divided among non-Indians, and Indian children were placed in federal boarding schools designed to destroy tribal culture and language, was also the height of Jim Crow and racist violence against African Americans. Moving to the 1950s and 1960s, Senator Sam Ervin, the “rational” Southern voice against integration, was also the primary advocate of Termination Era legislation seeking to bring civil rights to the Indians by imposing governmental control on them. Equally striking, in the same term in 1978, the Supreme Court decided both Regents of the University of California v. Bakke, which laid the groundwork for limits on the ability of the law to create true equality for African Americans, and Oliphant v. Suquamish Indian Tribe, which undermined efforts to create equality for Indian governments by denying them jurisdiction over non-Indians. Both decisions were products of a backlash against efforts to achieve equality that unduly threatened members of the dominant race. Through history, apparently inconsistent treatment of African Americans and American Indians are revealed as products of the same era and attitudes toward race.

A few clarifications are in order. Most important, this Article should not be understood to argue that tribes are at heart racial groups. The reverse is true: I argue that the basic racist move at work in Indian law and policy is to racialize the tribe, defining tribes as racial groups in order to deny tribes the rights of governments. Second, this Article does not argue that racism defines all of Indian law and policy. Perhaps even more than for other racial groups, important currents in Indian law and policy have supported a notion of tribal equality and self-government. Moreover, as any theory arguing that material interests importantly contribute to racial oppression must acknowledge, many interests and impulses other than racism affected Indian policy. Finally, this Article does not attempt to establish some kind of equivalency of oppression between Indians and African Americans or the many other victims of racism in the United States. Not only is there enough heartache for all to share, but a premise of this Article is that we have obscured a complete understanding of the way race works in America by trying to measure it against the experience of a single group.

With those caveats, the Article proceeds in three parts. First, Part I briefly sketches the development of the idea of race in the modern era, emerging from antecedent classifications by religion and nation, and then shows how these differences became understood as racial differences written on the bodies of Indians and African Americans during the colonial period. Indian peoples shifted from potentially equal governments burdened solely by lack of religion and civilization to barbarous natives whose differences were rooted in nature. Although enslavement of Indians was ubiquitous during much of the colonial period, it faded from significance in the colonies by the late 1700s as African Americans became racially fixed in this role and American Indians fixed in their role of absorption and disappearance.

Part II moves to the period between the Founding and the early twentieth century, as ever greater oppression and denigration of Indian governments combined with continued insistence on the need to assimilate the Indian people. Although the increasing restrictions on free people of color did impact native people during this period, laws mandating such segregation were the exception rather than the rule. The products of popular culture--the movies and dime novels--similarly demonized the tribe while presenting a stereotyped but often sympathetic view of Indian attempts to assimilate. Part III concerns the policy shifts of the twentieth century, in which new efforts to secure tribal equality have been met by renewed assertions of the inherent inferiority of tribal governments, joined this time by efforts to destroy tribal sovereignty in the name of racial freedom and equality. In conclusion, I discuss the implications of this history for current debates regarding race and American Indians, including the impact of Equal Protection law on measures protecting tribal sovereignty, and the current exclusion of freedmen citizens from the Cherokee and Seminole Tribes.

This Article thus moves from the first colonization of the United States to some of the most debated pending issues in Indian law. It sheds light not only on contemporary debates in the U.S. Congress and the Supreme Court, but also on the origins of American identity and the persistent uses of race in modern society. In so doing, it hopefully contributes to the continuing struggle for Indian survival.

. . .

Although history dominates this Article, this history has powerful implications for modern tribal survival. Native nations are in the midst of a cultural and political renaissance. Fueled by the refusal to give up the Indian identities that have sustained them, and supported both by intertribal action and overdue governmental encouragement, modern tribes have reemerged as formidable sovereigns. Development of tribal governments and economies has finally begun to shorten the gap between Indian and white health, education, and standards of living. By interfering with long-established hierarchies of power and non-Indian expectations, however, this renaissance has engendered protests that tribes are not governments but rather racial entities whose rights are fixed by their historic roles. Ironically, this effort to fix tribes in past-subordinate positions has been strengthened by the rhetoric of racial equality.

The history presented in this Article helps reveal that such efforts largely continue past patterns of racialization of native people and Indian tribes. Because civilizing individual Indians formed a central part of the rationale for colonialism, the permanent inferiority of, or need to segregate, the Indian individual was not the dominant expression of racism against Indians. Indeed, the most important racial defect of the individual Indian was the innate urge to cling to the Indian tribe and resist the benefits of assimilation. Tribes, however, were permanently defined by their racial origins. They were representatives of a primitive culture defined by familial ties and inherent habits, rather than modern consent-based governments. As such, they could be denied territory, sovereignty, and many other rights inconvenient with the destiny of the non-Indian, American race. This combination--denigrating the tribe, assimilating the individual--was perfectly tailored to the need to justify colonization yet maintain the moral superiority of Anglo-American identity and democracy. Modern backlash against tribes, which emphasizes the racial composition of Indian tribes and their adherence to insular traditions construed as inferior and unfair, is thus not the product of a society committed to racial equality, but the same old pattern of tribal oppression reshaped for modern ideology.

Shifting our understanding of the role of racism in Indian policy has important implications for equal protection law and its apparently anomalous treatment of American Indians. While classic equal protection jurisprudence can counter discrimination against Indians as individuals, it may pose obstacles to equality for Indians as members of tribes, because tribal membership often is, and will likely continue to be, dependent in part on tribal ancestry. Although the governing precedent upholds special treatment of Indians so long as those measures are “tied rationally to the fulfillment of Congress' unique obligation toward the Indians,” thus permitting measures that are “reasonable and rationally designed to further Indian self-government,” this precedent is under attack both as a matter of law and of policy. Understanding that the most devastating manifestations of racism for American Indians were denial of the governmental status of the Indian tribe and limitation of tribal status to that of a racially inferior group provides a new lens to understand why protection of tribal governments is in fact a necessary means to undermine racism toward American Indians.

It also, however, should serve as a cautionary statement to Indian tribes themselves. There are important traditional and contemporary reasons for maintaining descent as a criteria for tribal membership. But in order to truly act as sovereigns, tribes must consider tribal values of fairness, community, and justice, and reject those measures that do not serve those values.

By examining the ways that race has worked for American Indians, this Article also contributes to a larger scholarly body of work seeking to understand the many manifestations of race in a multiracial America. In particular, it helps to develop our understanding of the intersection of colonialism and racism, something that American scholars have been slow to incorporate given the forcible separation of African Americans, our archetypical racialized group, from their cultures and nations. From the moment of racism's emergence in early Modern Europe, race was conflated with culture and nation, with an inferior culture implying an inferior biology. In the United States, this intersection has impacted not only American Indians but other groups for whom the social meanings of race, culture, and nation are fully entangled. Mari Matsuda reminds us that “[f]ear of blackness and oppression of African Americans formed American culture,” providing a deadly model for the treatment of American Indians along with all other differently raced groups. In the same fashion, the patterns of racialization of American Indian governments and cultures have influenced not only responses to Latin Americans and Asians, but also the cultural demands for “whiteness” that now confront African Americans.

Race, the complex body of social meanings that attach to group differences of ancestry and appearance, has deeply influenced the history and institutions of the United States. Understanding the way that race has worked with respect to American Indians, one of two differently raced groups present throughout the formation of American identity, is thus necessary to understanding and grappling with the history of the United States. Because this history of racialization shaped and continues to impact policy and treatment of American Indians, it is also an important part of the ongoing quest for Indian and tribal survival. This Article, by unpacking and examining the formation and continuing uses of American Indian race, hopefully contributes to both of these goals.

Oneida Nation Visiting Professor of Indian Law, Harvard Law School; Professor of Law, University of Connecticut School of Law.