Fletcher, On Black Freedmen and Indian Children

Matthew L.M. Fletcher, Michigan State University College of Law, compares the history of African Americans and American Indians, and examines intersections and implications, in a new paper, On Black Freedmen and Indian Children. Here's the abstract:

In recent years, some legal, political, and cultural questions involving American Indians have begun to overlap - and conflict - with those of African Americans. Two ongoing debates shed light on this question. First, the Cherokee Nation of Oklahoma's vote to strip the Black Freedmen of tribal membership generated allegations of racism and calls to force Indian tribes to comply with the Reconstruction Amendments. Second, Randall Kennedy's allegation that the Indian Child Welfare Act is a racist and counterproductive exercise in social engineering feeds judicial and political resistance to the Act. These controversies highlight a serious problem in Indian-Black political and social relationships - the discourse of Black-White racism has begun to intrude into the discourse of American Indian law. The federal law established as a reaction to Black-White racism - the Reconstruction Amendments, federal civil rights statutes, and federal case law - expresses important antidiscrimination principles that can conflict with the foundational elements of American Indian law - tribal sovereignty, the trust relationship, and measured separatism. To import the law of Black-White racism into American Indian law is to destroy American Indian law and, potentially, American Indian culture