Carla Pratt on Tribal Miscegenation Laws

Carla Pratt (Penn State) has published “Loving Indian Style: Maintaining Racial Caste and Tribal Sovereignty Through Sexual Assimilation” in the Wisconsin Law Review as part of the Review’s symposium on Loving v. Virginia.

Here’s the intro:

When the United States Supreme Court struck down Virginia’s miscegenation statute forty years ago, everyone understood that the Court was eroding the formal barrier between blacks and whites. Although there has been healthy disagreement about Loving v. Virginia, including whether it provides the precedent for legal endorsement of same-sex marriage, scholars generally agree that the Virginia statute which Loving struck down was not a law proscribing miscegenation generally, but merely prohibiting miscegenation with a white person. Commentators have generally recognized the Virginia legislators’ choice to structure the law in this way as being aimed at preserving white racial purity and ensuring that white women were reserved exclusively for white men. Ostensibly the law was insouciant regarding the intimate relations of people of color, but a closer look betrays its impact on interracial relations between people of color.

            Further, state miscegenation laws that ultimately permitted whites to marry Indians aided the assimilation of Indians into mainstream white America by operating as a form of racial rehabilitation. Indian assimilation, however, required more than Indians intermarrying with whites; it required the total indoctrination of Indians into the system of white supremacy. This meant that Indians needed to adopt white sexual mores, including the aversion to race-mixing with blacks.

            This Article calls this process – which operated as the pathway to Indian acceptance in American society and privileged Indians over blacks – “sexual assimilation.” While sexual assimilation was aimed at cultural genocide from the federal perspective, it paradoxically played a role in preventing Indian cultural extinction by helping to maintain tribal sovereignty.

            Scholars have generally characterized Loving as a case about the line separating whites from blacks. Within the subtext of Loving, however, lies a narrative about the line separating Indians from blacks. Virginia’s miscegenation law employed a eugenics-based racial classification to legally construct Mildred Loving as “Negro,” but her true racial identity contained a Cherokee Indian component. Mildred was herself a product of race mixing. Furthermore, while Mildred’s mixed racial identity may lead one to believe that – as some scholars have suggested – Indians intermarried with blacks freely and frequently, the miscegenation laws of several tribes impart a counternarrative that portrays some Indian communities as viewing marriage to blacks as taboo.

            Despite all of the discussion about miscegenation laws that Loving has generated, there has been little discussion about the American Indian Nations’s enactment of miscegenation laws. Perhaps this paucity of literature is due to the fact that Loving had no precedential effect in tribal miscegenation law since tribes are sovereigns that are, in many respects, independent of federal regulation. Nonetheless, an examination of Loving is incomplete without an examination of the role that state miscegenation laws played in Indian communities in the scheme to maintain the boundaries of racial categories and the struggle to maintain tribal sovereignty. An examination of tribal miscegenation law yields a better understanding of how state miscegenation laws affected nonblack people of color such as Native Americans, who were often political casualties of state and federal laws designed with a black-white paradigm in mind. In fact, Native Americans found themselves wedged in the middle of the black-white models of racial subordination and ultimately adjusted to the existing racial hierarchy through social and legal assimilation.

            The fact that several Indian tribes adopted miscegenation laws similar to the law struck down in Loving raises important questions. Why did these particular tribes adopt miscegenation laws? What role did the adoption of miscegenation laws play in the tribe and its interaction with state and federal governments? What role did tribal miscegenation laws play in the acculturation of Indians, and what legacy have these laws left for the tribes’ contemporary understanding of self?

            This Article examines tribal miscegenation laws in an effort to locate some potential answers to these questions. This Article is not proffered as a definitive answer to the questions posed, but as a contribution to the emerging dialogue aimed at developing a collective understanding of the social, historical, and political context in which such laws arose and operated. This Article deviates from the traditional binary paradigm of exploring how miscegenation laws affected blacks and whites 19 and explores how miscegenation laws affected nonblack people of color and their relations with blacks. Thus, it reveals that the statute at issue in Loving and similar race-preserving laws indirectly regulated interracial relations between certain nonwhite groups.

            Part II of this Article explores the substance of tribal miscegenation laws – and their legal and political context – in an effort to better understand why tribes adopted such racially isolating laws. Part III examines how state miscegenation laws affected Native Americans as well as the role of tribal miscegenation laws in maintaining individual and communal Indian identity and tribal sovereignty. Part IV questions whether tribal miscegenation laws, despite their repeal, help explain contemporary tribal conflicts between blacks and Indians. Part V concludes that extant legal disputes between the tribes and African Americans who claim membership in those tribes are derivatives of the project of sexual assimilation of Indian people. This suggests that both the tribes and African Americans who claim a Native American identity could benefit from a better understanding of the historical sociolegal context in which contemporary notions of Indian identity are rooted.