Indian Legal Program Brown Bag Session

Bethany Berger
Associate Professor of Law, University of Connecticut School of Law

Monday, October 29th

Room 114
Sandra Day O’Connor College of Law

An abstract of Professor Berger’s article is provided below.

Red: Uses of American Indian Race.

This Article uses history to examine how racial meanings developed and are used in Indian law and policy. Scholarship on the subject has too often either assumed that race works for American Indians in the same way that it does for African Americans, and therefore emphasized uses of blood quantum and segregation as primary evidence of racism, or has emphasized the lack of the hallmarks of white-black racism, such as prohibitions on interracial marriage, to argue that race is not a significant factor. In the Article, I examine the different eras of Indian-white interaction to argue that although racialized perceptions played a role throughout these eras, they generally worked in a very different way than they did with respect to African Americans. North Americans were not primarily concerned with using Indian people as a source of labor, and therefore did not have to theorize Indians as inferior individuals to control that labor. Rather, the primary concern was to obtain tribal resources and use tribes as a flattering foil for American governments. Therefore it was 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. This theory addresses the odd paradox that the most racially oppressive eras in Indian-white interaction emphasized and encouraged assimilation of Indian individuals. It also speaks directly to an issue that figures prominently in current policy debates and will likely soon reemerge in the Supreme Court, the status of classifications of Indian people under equal protection jurisprudence.