What Blood Won’t Tell: A History of Race on Trial in America, by Ariela J. Gross. Harvard University Press, October 2008. $29.95
As a child, there were the Americans, and then there was us.
Americans weren’t that plentiful in my grandmother’s neighborhood. The next-door neighbor to the right, he was an American. He was an older man, and he had a big grey dog chained up in his backyard. On New Year’s Eve, two of his sons got into an argument, so one of them went into a room and came back with a pistol and shot his brother dead, right there in the hallway. My grandmother’s other neighbors, two doors down, used to shoot off guns all the time too. They weren’t Americans. My uncle was roller-skating up and down the street once, when a car pulled up in front of the neighbor’s home. Just as my uncle skated by the car, the rear window lowered, and a shotgun slid out. He screamed. The window sucked back the shotgun and the car tore off. The guys in the car weren’t American, either.
This kid, Mitch, he lived down the street from my grandmother, and he was an American. We played marbles in the dirt with him all the time; sometimes he would sell us some from a margarine tub full of marbles of all sizes, including the giant Jupiter-like ones you had to hit five times in a row, sometimes ten, to claim. In their garage, his dad had a sun-bleached poster of Farrah Fawcett, the famous one of her in profile, wearing a red, one-piece bathing suit, her body bent into a V, her perfect kneecap level with her blonde head. Except in this poster, she was naked. Early on in their marriage, my mother made my father throw away all the Playboys he kept in the garage, so, up till then, I had never seen an American woman, let alone a beautiful one, naked.
There were American kids at my elementary school, though not many. But there were Americans all over TV. Mr. Kotter was American. Kojak was American. The guy from Kung Fu was or was not American; who could tell? Vin Scully was American, so were Ron Cey and Steve Garvey. But Dusty Baker was black, and we were Mexican, even if some of us looked like the Garv.
If something terrible was reported on the local news, my grandmother might say, “That poor American girl.” If I got into a fight on the way back from school, I might say it was with an American boy. We spoke Spanish, made menudo, and loved USC football. We went to church, liked disco, and hated the Celtics. But we weren’t Americans. After all, none of us had an inground pool.
Much wrangling—legal and intellectual—has gone into delineating which Americans are really Americans and which are not fully Americans: black, Indian, Latino, or Asian. How that was reckoned in our country’s history is at the heart of Ariela J. Gross’s book, What Blood Won’t Tell: A History of Race on Trial in America. A professor of law and history at the University of Southern California, Gross examines various court transcripts and federal rulings, stretching back to the years just before the Civil War and going well into the twentieth century, to make sense of how Americans—white Americans—decided whether a person (or an entire group of people) was just like them and so should be afforded all the rights guaranteed under the Constitution and the Bill of Rights. Gross supplies a specific accounting of the contortions into which communities and the courts tangled themselves while trying to figure out who was really white or black, or something else. And she looks at the consequences of this thinking, how it divided a nation into black, “non-white” (Native Americans and immigrant groups that didn’t come from Europe), and white—the people my grandmother and so many others refer to as, simply, Americans.
The necessity for classification, Gross writes, stems from “the peculiar institution.” In eighteenth- and nineteenth-century America, slavery had to be justified by the ideal that one group of people was intrinsically suited to be chattel and another group of people was meant to wield the whip. Slavery depended on a lot of people buying into “a powerful ideology,” the notion of race. “Fundamental to race is a hierarchy of power . . . a human Chain of Being, with white at the top and black at the bottom.” For the institution to survive, a slave’s “blackness”—those qualities identifying him as being descended from the tribe of Ham—had to be indisputable. The trouble was, if a slave didn’t have, say, dark brown skin and kinky hair, it sometimes wasn’t clear how to categorize him. This uncertainty would prove to be a persistent problem, which, Gross shows, isn’t surprising. The need to separate people was working against an unacknowledged truth about the roots of the country. Namely, there was never a time when people of different skin colors and cultures didn’t mix with each other, whether by their own volition or against their will.
Colonial America, Gross writes, was a rather mixed society. Not only were there communities of African Americans, some of whom were never slaves, but there were robust Indian nations, too, throughout the Eastern seaboard. And into these nations African Americans were often welcomed, as were some European Americans. Some were free blacks, some were former slaves; they took Indian spouses, had children, and conformed to their adopted culture. Some Indian groups, such as the Five Civilized Nations, held black slaves. They even fought on the side of the Confederacy. There was, of course, some integration between slave and master in these groups, just as there was in the white antebellum South. In early America, with each wave of births, and with the country’s ever-expanding territorial domain (meaning new towns were constantly forming where people showed up with little or no documentation of their past), the only way to know for sure if somebody was black or white was to find out whether or not he or she had a master.
This was especially the case in the South, but even there, presumably irrefutable proof wasn’t enough. Take the case of Alexina Morrison, a blonde-haired, blue-eyed Louisiana woman who claimed she was not a born slave but rather a kidnapped white woman. Gross offers her case as an exemplar of how the first racial-identity trials worked: they were decided at the local level, settled by juries of white men who were ultimately more interested in how the plaintiff acted rather than how she appeared. Though Morrison “was undoubtedly a slave, and almost certainly had some African ancestry,” and despite the testimony of doctors that she was biologically black, and despite an examination of her body in court, where parts of her were poked and prodded for the “hidden marks of race,” Morrison was granted her freedom because, to use a sociological term, she “performed” white. Performing as a white woman, Gross writes, meant displaying unimpeachable moral virtue and chasteness. That, and already being accepted as white by the local community, took precedence, not only in Morrison’s case, but in so many others. Gross cites how “[d]espite the visual power of exhibition, not all candidates for whiteness were paraded before the jury, and even when they were, jurors were given many reasons not to believe their own eyes. Only 20 of 68 case records from the 19th Century South referred explicitly to inspections.” What’s more, “[o]nly 2 of 20 relied solely on physical appearance, and only one case relied on physical appearance plus a single type of evidence,” such as the plaintiff not having the “hollow arches” of a biologically white woman. In another case, Hudgins v. Wright, the plaintiff, Hannah, won her freedom by convincing the court she was Indian and not black. She claimed that her mother, a slave, was Indian. Her “red complexion” and straight hair, as well as what was described as a noble character, were proof she couldn’t possibly be black. The court’s ruling confirmed, Gross writes, that “Indians were by default citizens of a free nation; Africans were by default members of an enslaved race.”
Not surprisingly, it was women who overwhelmingly accounted for the successes in these types of cases. Given that white women couldn’t even vote at the time, there wasn’t much the plaintiff had to do besides plausibly look white and know how to properly curtsy at a ball and avoid swearing in public to gain her freedom. In cases involving male plaintiffs, they had to prove their whiteness by having somebody vouch that they had at one time voted, served on a jury, or mustered in a militia. As with the women, how one looked didn’t matter as much as how one acted in society. Soon, though, acting white and looking white wouldn’t matter. After the Civil War, Jim Crow legislation would make a person’s blackness hinge on whether he had a tiny fraction of African ancestry—one drop of blood. Where at first “drawing the line between black and white helped to strengthen the institution of slavery by making slavery ever more congruent with race and encouraging poor and middling whites’ identification with white elites”—in 1860, only 25 percent of white families in the South owned slaves, and only 4 percent of the white population owned more than twenty slaves— segregation and its discriminations would enforce the idea that in “the broad sense of participation in political and social life, only white people could become—and were seen as capable of becoming—citizens.”
What follows in Gross’s book is an account of how this belief extended to many other groups of Americans, and how they tried to accommodate that conviction, nurtured in the South but held throughout the country. Rarely in race-identity trials was the basis for this thinking challenged. Instead, plaintiffs tried to prove their whiteness. Barring that, they tried to show they at least weren’t black. Such were some of the gambits for escaping disenfranchisement.
Among the Indian peoples of the United States, the paradigm of black and white would prove especially destructive. And whereas past cases of racial identity were settled in state courts and their juries, with the Dawes Allotment Act of 1887, race would be determined in federal courtrooms and offices by federal officials and commissions. Indian nations were ushered into a way of thinking which defined identity solely by the ancestry in one’s blood. The more “pure-bred” a person was, the more “authentic.” The Dawes Act was intended to make US citizens of Indians by breaking up their reservations and giving each member his own piece of land. Two things resulted, according to Gross. One, “most Indians lost their allotted lands within a brief span of years to sales, fraud, and graft.” And two, a mechanism was created by which black Indians, known as “freedmen,” would be robbed of their identity and any possibility of escaping the brutal institutionalized racism that was Jim Crow. These freedmen would be scrutinized for the damning one drop of blood, and the concept of “blood quantum” would allow the federal government to define who was a real Indian—and thus entitled to certain rights denied to black Americans. Gross describes the farcical method by which these identifications were made. The Dawes Commission “traveled with a caravan, pitching a small tent city of three commissioners, a stenographer, a translator and several secretaries . . . There were two tents: one known as the ‘Indian tent’ and one known as the ‘nigger tent’ or ‘darky tent.’ Once an individual ended up in one tent or the other, it was assumed that his or her identity was already fixed: the determination happened outside the tents. The tribal member standing at the door . . . directed individuals to one tent or the other on the basis of personal knowledge of an applicant’s family or status in the community, or according to the applicant’s appearance or performance [i.e., did he act and look as one of them].” No records exist, Gross writes, that might explain the rationalizations for this arbitrary segregation. So, in a single stroke, one group of Indians would be disenfranchised, while another would be set upon a path—the Certificate of Degree of Indian Blood—that would practically guarantee their numbers to shrink, barring the marrying of distant cousin to distant cousin. “The determination made in a dusty tent by ill-informed white officials supervising the enrollment and allotment process during a few hectic months in the early twentieth century,” Gross writes, “determines whether today an Indian’s [CDIB] card reads ‘1/32’ or ‘1/64’ or ‘1/128’ Indian blood—numbers that might determine whether the cardholder can vote in Indian elections or qualify for government aid.” Or who, because of whom his ancestors chose to love, can even think of himself as Indian. Among the long-term results of the Dawes Act have been the ancestors of freedmen going to court to win back their identities. “Both the Black Seminoles and Black Cherokee spent a good part of the twentieth century embroiled in litigation with their tribes . . . to ensure that they would share in any disbursement of national funds or common property.” Worse, “a wedge [was driven] between people who had previously been united in various ways.”
The consequences of the black-white paradigm were profound as well for Latinos and Asians—specifically, Mexican, Filipino, Chinese, and Japanese men, women, and children. They were subjected to “color biases that centuries of African slavery and battles with Indians had already established in American minds.” Many Americans were expected to deform their identities for the sake of citizenship and civil rights. They had to prove their whiteness, which boiled down to showing they couldn’t be considered black and so shouldn’t be equally disenfranchised. In one case before the US Supreme Court in 1923, plaintiff Takao Ozawa argued he should be allowed to become a naturalized citizen. He attended the University of California at Berkeley and made sure his children spoke only English at their home in Hawaii. He had spent his entire life acting and thinking as an American—a white American. His suitability for citizenship was obvious. Not so, said the court. Justice George Sutherland conceded Ozawa was “well qualified by character and education for citizenship.” But, as Gross points out, his and the court’s ruling implied “Ozawa was white only if all Japanese Americans were white.” When it came to immigrants from Asia, federal courts would make similar rulings, adjudicating on the assimilability of entire peoples (some of whom, like the long-discriminated-against Chinese, had already lived in the US for many years), employing the latest in eugenics and anthropology to determine how close to white or far from black an entire group was. One year later, the Immigration Act of 1924, which pegged immigration quotas to each nationality’s percentage of the US population in the 1890 census, cut off almost all Asian immigration, Gross writes. Meanwhile, Asian Americans already in the US faced laws denying them the right to own land or even to take a white person as a spouse. In this way, it was decided that people whose ancestors came from Asia were unfit to vote or sit on juries, or even serve in the armed forces with white soldiers.
But even if the Ozawas of the time had won the Supreme Court’s approval—an official stamp of honorary whiteness—it’s not at all clear the designation would have amounted to much. As Gross shows in her book’s section on Mexicans, Mexican Americans, and the courts, being white on paper didn’t mean access to civil rights.
Unlike the other groups discussed so far, Mexicans and Mexican Americans were, on paper, deemed white because of the Treaty of Guadalupe Hidalgo, which brought to a close the US-Mexico War. “White by treaty,” they were nonetheless not allowed to serve on juries and were segregated in public schools, swimming pools, theaters, restaurants, and churches throughout Texas and California. And being legally white didn’t keep nearly half a million from being repatriated to Mexico in the 1930s, “the majority under great duress,” according to Gross. (To give context, there were only about seven-hundred thousand Mexican Americans in Texas at the time of the 1930 US Census.) When civic groups such as the League of United Latin American Citizens sued the courts in the 1930s and 1940s for the right to serve on juries and the like, “state courts began to dismiss claims by covering Mexican Americans with the ‘Caucasian cloak’ and to chastise civil rights litigators for presenting their ‘white’ clients as victims of racial discrimination.” After all, if you’re Mexican American, that is, white, and the jury for your trial is made up of a dozen men with surnames like Ryan and Bauer, fellow white Americans, you’re still getting a jury of your peers, no? Likewise, if you have to attend an all–Mexican American middle school, you’re actually enrolled among your fellow whites. So there couldn’t be any segregation going on there, yes?
The “Caucasian cloak” was cunningly tailored to hide obvious wrongs. What made it cling so tenaciously was that Mexican Americans were deemed white under law, thus there was nothing that could be pointed to as explicitly discriminating them as a race in federal, let alone state, statutes. Rather, the discrimination was propagated “by custom and local administration,” Gross writes. And there was the fact that, like the Indian nations, they “occupied a shifty ‘third territory’ between black and white: when contrasted with whites, they were ‘greasers’ and colored; but when contrasted with blacks, they were white, to the point of not being allowed to marry black people without violating the miscegenation laws,” Gross writes. (The Supreme Court didn’t invalidate anti-miscegenation laws until 1967.) Such are the rewards of aspiring to whiteness.
The fig leaf for justifying this racial discrimination was to call it something else, and thus skirt around the Fourteenth Amendment: it was merely cultural bias. How could a Spanish-speaking citizen understand the complexities of jury duty? How can anyone with an accent find his way through English textbooks? How is it possible that . . . a Mexican . . . could be fully American? For Gross, this is what the “contemporary view of race” now looks like. It’s one in which “racial segregation is justified not on the grounds of biology but rather on those of social science: the culture of poverty, the negative effects of the ghetto, the ‘matriarchal family,’ and so on.” In other words, someone white is now defined as middle-class, upwardly mobile, tax-paying, felony-free, and having a degree or some sort of certification. Black could be defined as the opposite. It seems evident that for non–European Americans social class will determine how white—how American—they will be considered. While the contemporary examples she gives of cultural bias—such as firing an African American employee because he insists on wearing cornrows to work—are undoubtedly racial at heart, they speak to a conflation of race with class. That’s why there’s so much turmoil regarding the unprecedented numbers of Latino immigrants in the United States. Culturally, they’re such a mismatch. In the minds of many, they’re more headache than benefit. They’re poor, undereducated, they foment street gangs and urban mayhem, and they barely speak proper English. Why, they’re practically black.
What’s missing from the discussion is the recognition that these are symptoms of societal neglect and have nothing to do with the core attributes of a group of people. That is, the thug life and mi vida loca are no more integral to the whole of African and Mexican American identity than the Westies and the Mafia are to Irish and Italian American identities. Cultural bias is really a bias toward the poor and the working class. Even more insidious, cultural bias expects an entire group of people to only be capable of poverty and ignorance. As a result, the perception is formed that blacks’ and Latinos’ “misfortune will be due to their inferior cultural, moral, and civic attributes, not to [racism], and so will require neither intervention from the state nor remedy from the society at large.”
So a self-fulfilling prophecy regarding who is worthy of citizenship is maintained. It is yet one more wedge driving Americans apart, Gross points out, one more way of finding unconquerable differences where there are none. What Blood Won’t Tell is a distillation of all those impediments, of how a country went about dismembering itself because it couldn’t accept the sum its parts added up to: that being an American does not—cannot—solely equal being white. The evidence is as plain today as it was then. Just look at the people we live next to, the people we love, the people, like those in my grandmother’s neighborhood, whose sorrow and happiness hardly varied one from the other, whether they were “Americans” or not.