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excerpted from: Rebecca Tsosie, The New Challenge to Native Identity: an Essay on “Indigeneity” and “ Whiteness ” , 18 Washington University Journal of Law and Policy 55 (2005) (253 Footnotes) (Full Document)


Rebecca TsosieCritical race theory has explored the legal construction of race, providing a point of departure for scholars to discuss the construction of “White” identity. The link between racial identity and privilege is undeniable and is carefully illuminated by scholarly work on “whiteness,” and in particular by the theme of this conference, which is to explore the ways in which “whiteness” and “white privilege” create, entrench, and reproduce themselves. But what possible relationship could exist between “whiteness” and contemporary debates over “indigeneity” ? This relationship is perhaps best understood within the context of work on “race-consciousness,” which is often held to comprise at least two different aspects. First, some scholars have responded critically to the notion that the legal system is (or should be) “color-blind.” Under this view, we ought to explicitly recognize and encourage recognition of races and racial difference. Second, scholars increasingly acknowledge the importance of race to personal identity and world view. This perspective seems to respond to the idea that constituent citizens of a “color-blind” society ideally engage from an “objective, race-less perspective.” If our race, ethnicity and culture produce our individual identity, then we are constituted as members of groups and not purely as individuals. The values shared by members of those groups-- however different from those of other groups--inform our particular “race-consciousness.” Not surprisingly, the law works in concert with social norms that perceive “group-based” claims as unnecessary, or even downright dangerous. Professor Harris asserts, for example, that the law's denial of the existence of racial groups is based partly on a desire to disclaim the continuing effects of past (overt) racial subordination, and partly on the liberal notion that rights, including constitutional rights, inhere in individuals and not in groups. Liberalism thus asserts that “equality” mandates only the equal treatment of individuals, and does not require that “groups” are made whole, even if past discrimination was specifically targeted against those groups.

Not surprisingly, the bulk of the scholarship on race consciousness was generated from “outsider” perspectives initially, which expressly or implicitly meant that “whiteness” was the unexamined “norm” in the law, and that race-consciousness entailed an affirmative recognition of “Black” or “Latino” or “Native” identity as an epistemological as well as social phenomenon. The recognition of separate group identity as a positive force for social change was a key function of the literature on race consciousness. Ultimately, however, some scholars began advocating race-consciousness as a step toward the elaboration of “a positive White racial identity,” leading critics to charge that this, in fact, already exists and may further subordinate minority identities as “tropes of hierarchical difference.” The debate over “indigenous” identity tests out both theories. How does the construction of “indigeneity” track efforts to define “Native American” identity as separate from, and prior to “white” identity? And to the extent that the descendants of European colonizers now seek to define their identity as “Americans” (or “Pakeha” in New Zealand) as different from that of their European forebears, how do they use the trope of “indigeneity” to support their own status and privilege? And what impact does this have on Native peoples in those countries? In many ways, the ultimate question is one of appropriation, and it is best evaluated through a historical, as well as contemporary, lens.

As Ian F. Haney López has demonstrated, not only is race “socially constructed,” but the law is one of the most powerful mechanisms available in this process. “Law constructs race,” and it does so within the larger context of society. As social knowledge and social norms shift, so the role of the law in constructing race shifts. However, as Haney López further notes, the “law does more than simply codify race.” Legislatures and courts not only “fix the boundaries of race in the forms we recognize today,” but they also “define the content of racial identities” and use this to “specify their relative privilege or disadvantage in U.S. society.”

In relation to “whiteness,” Cheryl Harris observes that “the law's construction of whiteness defined and affirmed critical aspects of identity (who is white); of privilege (what benefits accrue to that status); and of property (what legal entitlements arise from that status).” “Whiteness at various times signifies and is deployed as identity, status, and property, sometimes singularly, sometimes in tandem.” Similarly, the law is now turning to examine critical aspects of Native identity, deciding who is “indigenous” (rather than who is “Indian” or “Native American”) and what rights accrue from that status. Ironically, the legal effort to define “indigeneity” seems focused on narrowing the category of rights-holders in order to preserve status and entitlements for non-indigenous people. In the United States, “white identity” appears to be crafting an “indigenous” component.

Harris's work provides a detailed historical analysis of the connections between property, identity and the law. From the country's inception, America's social, legal and economic institutions utilized conceptions of race and property to establish and maintain the racial and economic subordination of non-White peoples. In the earliest years, this was done primarily through the use of racial hierarchies and stereotypes that “justified” the enslavement of Africans and the dispossession of Native people from their lands and resources. Jurists posited that both were uncivilized groups of people who could not qualify for citizenship or rights commensurate with those of civilized persons. Africans were deemed to be on the lowest order of humanity, little more than chattel, and so, were completely subject to the will of their “master,” who could “discipline” them (read as assault or murder) at will without fear of liability for tort damages or criminal prosecution. African enslavement commodified human beings into a “resource” that could be exploited by White “owners.”

Native Americans were considered by some Enlightenment philosophers and politicians to be one step up in the evolutionary order. They were noble “savages” living in a “state of nature,” and these Europeans romanticized their impressions of Native people by imagining that at the dawn of civilization their own ancestors likely shared such a free-spirited and nomadic life. As Thomas Jefferson stated in a 1785 letter:

I am safe in affirming, that the proofs of genius given by the Indians of North America, place them on a level with whites in the same uncultivated state. The North of Europe furnishes subjects enough for comparison with them, and for a proof of their equality. I have seen some thousands myself, and conversed much with them, and have found in them a masculine, sound understanding. . . . I believe the Indian, then, to be in body and mind equal to the white man. I have supposed the black man, in his present state, might not be so; but it would be hazardous to affirm, that, equally cultivated for a few generations, he would not become so.

Of course, “savages” did not have a legal system or lifestyle capable of maintaining actual property rights that would have to be respected as a “preexisting legal title” to the lands “conquered,” as would another “civilized” nation. Therefore, the Doctrine of Discovery that was used to claim “title” by the first European sovereign to discover “vacant lands” was extended to lands occupied by “uncivilized” peoples. Native peoples' occupancy of the lands did not constitute legal possession for purposes of claiming title. Again, the racialized identity of “Indians” as the “Savage Other” was contrasted with the “civilized” European who was capable of holding “title” to the land. Like many of his peers, John Quincy Adams drew on Locke's work to assert that Indians had a “questionable” claim to title as “first possessors” because these lands “lay in the common, left ‘wholly to nature,”’ and thus were a “proper subject of appropriation by one's labor.” “The right of the hunter could not preempt” the right of the millions of settlers who actually “needed” the land and would make constructive use of it. Of course, none of these men actually questioned whether Indians were actually first in time. Rather, they focused only on the question of why being first in time didn't give rise to the legal rights that ordinarily would follow from this status.

As Harris demonstrates, in a society structured on racial subordination, “white privilege” became the expectation and the law constructed “whiteness” as an objective fact, designed to govern the relationship of different members of society according to the reification of a “thing” (whiteness). Thus, although slavery was ultimately abolished and the reconstruction era-amendments to the Constitution enacted in the search for “equality” of citizenship, “whiteness” still was used to confer a “host of societal privileges, in both the public and private spheres,” including rights to vote, travel freely, attend particular schools, and marry a person of one's choosing. Plessy v. Ferguson stated that separate public facilities did not interfere with equality of citizenship because only social rights were affected by these policies and not political rights. Similarly, until the United States Supreme Court's 1967 decision in Loving v. Virginia, many state courts upheld laws prohibiting the miscegenation of the races as purely designed to protect the “social” values and practices of the state and its citizens, and found that these laws did not impair any “political” rights.

Even after the twentieth-century civil rights era, Harris claims that the law's approach to group identity continues to reproduce subordination. In the older cases this occurred through the explicit “race-ing” of a group: assigning a racial identity that supported the perception that the group had an “inferior” status. In the contemporary era, the backlash against affirmative action has worked to “erase” racial group identity. The old “color-blind” notion used to overtly discriminate against racial minorities is now used to assert that they do not exist! We are all “equal” because “race” is irrelevant for legal purposes. Importantly, Harris's research demonstrates that the “property interest in whiteness” still exists:

Over time it has changed in form, but it has retained its essential exclusionary character and continued to distort outcomes of legal disputes by favoring and protecting settled expectations of white privilege. The law expresses the dominant conception of “rights,” “equality,” “property,” “neutrality,” and “power”: rights mean shields from interference; equality means formal equality; property means settled expectations that are to be protected; neutrality means the existing distribution, which is natural; and, power is the mechanism for guarding all of this.

I would like to suggest, at least with respect to Native peoples' rights claims, that we must expand the discussion about “whiteness” to include the international dialogue about “human rights” and its implications for Native peoples' substantive rights to land, ancestral remains, and genetic resources at the domestic level. In doing so, I equate the dialogue about “whiteness” in American society with the dialogue about “colonialism” at a global level. Importantly, both dialogues are about politics, power, and property in the sense of “ownership” claims to valuable and scarce resources. For indigenous peoples, these areas have always overlapped, and they continue to coalesce in important ways in both the national and international discourses about rights.

. . .

The only way in which Native ethical systems can be appreciated is within the context of specific tribal epistemologies. The indigenous peoples of this land maintain an important basis of knowledge and wisdom that can teach a great deal about the place that we now call the United States. The United States, as a nation, is so young compared to the indigenous nations of this land. Americans search for an “indigenous” identity within their scientific and secular models, but they forget the most important thing of all: “Wisdom sits in Places.” This is the title of Keith Basso's work on the tribal narratives of the Western Apache people, in which they memorialize their cultural histories through association with particular sites and places. The brash assertions of geneticists that they can prove cultural affiliation by DNA testing can never replace the cultural histories of the indigenous peoples of this land, which tell us who they are and how they came to be.

Lincoln Professor of Native American Law and Ethics and Executive Director, Indian Legal Program, Arizona State University College of Law.