I was assisted in writing this post by a bottle of Chateau Leoville Poyferre – Saint-Julien (Grand Cru Classe) Bordeaux Red Blend 2008. I know. I know. This shit is $125.00 – but ain’t a brother allowed to treat himself SOMETIMES? A 4.2 Point killer Bordeaux. I think it’s at least a 4.7 Pointer. Bold. Dry. Tight structure. Leading with oak, cassis, and plums. A sustain of tobacco, black cherries, and jam. Ending with ripe blackberries, plums, and smoke. Medium savory finish.
“… The slave experience and White racism has been extremely costly to Blacks.
It will continue to be costly in a myriad of ways for Blacks and the nation until White America reparates and repents its exploitative racist past and present. A decision by White America to immediately cease and desist its racist practices against Black America and engage in a range of affirmative action initiatives will not suffice to repay Blacks the damages which have been done to them.
Only Reparations can economically redeem the injustices of slavery and White supremacy.”
Dr. Amos N. Wilson (1998)
This is a reposting and expansion of a Twitter “direct message” conversation between myself and a sincere brother whom is definitely a lineage-based Reparationist. This conversation was done from 02/10/2023 till 02/12/2023. The things that he is raising here I feel are ideas to make sure that those that are eligible are getting what they are due. I do have pushback here – but not from the standpoint of what the brother is attempting to accomplish, but just from a political strategy standpoint. Let me make clear that I do not doubt the sincerity of this brother to get Reparations accomplished. This is a sincere exchange between two folks trying to get the job done. Don’t put anything else in it.
This dialogue began with the good brother (named “QUERY” here) posting a link to a U.S. Department of the Interior website (linked below). Paged “Tribes” – and subpaged “Tribal Enrollment Process.” This subpage explains the tribal enrollment process, its purposes, tribal membership requirements, how to enroll, and locating what particular tribe you may belong to. I read the subpage. There were several eligibility processes and required proofs described that mirror and/or overlap the eligibility proofs and processes that we require to establish eligibility for lineage-based Reparations. I did find the website and what he was proposing interesting.
But the part that we centered our exchange on primarily was what the website describes as: “Tribal Blood Quantum.” QUERY describes a Freedmen version as “Native Blood Quantum.” This being accomplished via “Genetic DNA Sampling.” So – myself (named “RESPONSE” here), being a devoted “Darityism” disciple naturally pushed back and calmly spelled out my objections. I did some expansion (and grammatical corrections) on our original dialogue for the sake of this post.
QUERY: To your recent post… I’ve sent this information to five people who have some connection to the Reparations movement with no response. You’re the last person I’m sending this to privately before I start broadcasting it.
To the question of: “How can a race-based qualifier stand up to constitutional scrutiny?” In reference to the “must have lived as a Black American for the last ten or so years” in many Reparations legislations and discussions. I believe there is a solution which would remove this race-based qualifier.
The short version is this: There is a problem with the constitutionality of the current proposed identification of whom is eligible for Reparations. I believe this solution covers two critical areas that are not race-based but would be firmly lineage-based and can be proven [both] legally and scientifically:
Genetic DNA sampling.
I propose the process starts with lineage documentation through genealogical records which everyone agrees with. Usage of the “Freedmen Descendant” status as a matter of law. Removing the race-based requirement of “ten years of living as Black” – to this:
Allowing for random genetic sampling – not 100% – but maybe 10% or whatever is legally acceptable and also using the same genetic sampling to mount legal challenges to anyone who is not phenotypically Black American. Meaning they look white, but still have Descendant lineage, or they are clearly of Diasporan lineage. Because genetics do not confirm race and have no basis in racial classification – but are an accepted legal basis for paternity which is lineage. And DNA is used to connect people groups to specific geographic locations – it would provide a legally acceptable means to protect Reparations from outsider fraud.
Because Black populations all around the planet have different admixtures, it is highly likely Black Americans are unique. And this can be proven to be a legal standard in the event a sufficient paper trail cannot be established. And again – done as a preventative measure against fraudulent claims. My suspicion is this barrier would reduce fraud, and [this should] only be used in [clarifying] a small percentage of claims.
Ty Burrell [1] and Joe Manganiello [2] having Lineage are two compelling examples of why this is necessary. The constitutionality of this is the legal hurdle that must be overcome. I believe using Native Blood Quantum legal doctrine gives us this constitutional window. Nearly every [Native American Tribe] still uses Blood Quantum to determine eligibility for membership. The Federal Bureau of Indian Affairs also recognizes this system.
DNA genetic testing is an updated version of Blood Quantum eligibility, as far as I can determine. It removes the race qualifier and is based on current and historic legal precedent. I have a list of ten or so links and a few pictures to share also, if you are interested in looking deeper into this.
Query’s References 1 and 2:
[1] Ty Burrell (Tyler Gerald Burrell) is an American actor and comedian. He is mostly of English and German descent. He discovered through “Finding Your Roots” that he is also of African descent through his four times great-grandmother, a formerly enslaved girl from Tennessee who became a homesteader in Oregon. But his going-far-back chain of government paperwork says “Caucasian.” A “declared” white man. Ineligible according to the Darity standard. Permanently.
[2] Joe Manganiello (Joseph Michael Manganiello) is an American actor. He is mostly of German and Armenian descent. He discovered through “Finding Your Roots” that his mixed-race paternal grandfather was African American. His paternal lineage was traced back to Manganiello’s fifth great-grandfather. His great-grandfather’s name was Plato Turner – an African slave who was freed before slavery was abolished in Massachusetts, who then went on to fight for the Continental Army during the American Revolution. His government paperwork says “Caucasian.” Ineligible according to the Darity standard. Permanently.
RESPONSE: Several constitutional lawyers/scholars (notably Erwin Chemerinski) have found no problems constitutionally with the Darity eligibility standard.
One part establishes natural lineage from American slavery and/or free American residency during a particular time period. The other part establishes self and parentally intentional legal identification (such as: continuous in-born American citizenship; chain of relatedness to originally enslaved people; chain of relatedness to what can be called North American domiciled “indigenous” or pre-slavery Black people; chain of relatedness to 1865 manumitted and free Black people that were originally counted in the 1870 Census; how you and/or your parents/grandparents identify/identified you/yourself and lineaged relations intentionally).
Race does bleed into this. But race is not the BASIS. Intentional, continuous, and specific injury is the BASIS. And it just so happens that those who were primarily and historically injured in this case were originally enslaved and imported Africans (along with free and indigenous Blacks). We have millions of records and books and living testimonies proving this. A great and undeniable history. But because of genetic admixtures that are all over the place in our case (I have folks in my family that look white – but are adamant about their Blackness) – Blood Quantum testing would be a nightmare to be sure (an unneeded added complexity).
AND – I do wish that folks would stop bringing DNA into our equation. In our case – the Darity standard is the best solution. In any program [where direct cash payments are involved] – you are gonna have a few frauds that slip through. For us, maybe plus or minus 3%. Add in some harsh federal penalties for Reparations fraud – maybe we could get that potential down to 1%. Some motherfuckers are always gonna try it. At the same time, I understand your point. But in our case – race happens to be a secondary consequence and proximation to the BASIS. Which is slavery and post-slavery injuries. The United States Supreme Court understands this. And this is why if this is challenged – it will still pass constitutional muster. Even if that court is entirely composed of conservative justices.
Blood Quantum testing makes sense for American Indians because tribal bloodlines have remained relatively stable over centuries, and you are targeting a more or less “contained” population. Whereas our enslaved “tribe” has been “open-ended” over centuries as far as diverse genetic inputs – even up till freedom, being continuously infused into our already complicated racial mosaic. In our case, let’s say an African DNA percentage standard was established that you had to meet or surpass.
Consider This:
In your own family you would see a bunch of folks (lineaged from American slaves) being disqualified. And I mean real folks in your family that would be qualified without a hitch under the Darity standard. In my family A WHOLE BUNCH OF US would be disqualified. Out! I have twin cousins that surely are darker than me – but they amazingly, have a higher percentage of Caucasoid genetics than I do. So slippery phenotypical qualifiers can definitely go out the door as well. I’d rather not introduce more and unnecessary complexity to the eligibility process. I would rather keep it straight and simple.
QUERY: Interesting… I’d love to see any case law that establishes race as an acceptable secondary consequence. I was under the impression based on Erwin Chemerinski’s testimony that the race-based qualifier would be an issue? This is relieving information. I appreciate you taking time to discuss this.
RESPONSE: Recent case law has been careful to not establish race as an acceptable secondary consequence. Lately courts have been using a judicial evaluative tool called “strict scrutiny” before they allow litigants to move forward substantially with any “race-based” litigation. And all adjudications regarding race recently have been guided and concluded by and in varying degrees by this. For our purposes – in regards to Reparations – race has been reduced to a “happenstantial” position. It is just that the injured majority in our case “happens to be Black.” Understand?
An extreme example: Let’s say a white person is walking through a Black neighborhood and a horrific gas explosion occurs. Many casualties happen. The majority of folks killed in this incident – 99% were Black (mind you – this is still “happenstantial”). The white guy is also killed. But does the fact that he is not Black exclude his family from compensation? No! “Injury” always has to be the centerpiece. The part regarding eligibility as far as self-identification is not so much about “race” – but about an individual presenting the most accurate identification and [that person] legally establishing [with legally certified and state authorized documents] the highest likelihood of belonging to the injured group. That is and as it should be – just the uncomplicated and straightforward requirements.
Let’s see what Erwin Chemerinski has to say on the subject of “Strict Scrutiny:”
I. [It is] clearly established that racial classifications will be allowed only if the government can meet the heavy burden of demonstrating that the discrimination is necessary to achieve a compelling government purpose. In other words, the government must show an extremely important reason for its action and it must demonstrate that the goal cannot be achieved through any less discriminatory alternative. The Court has expressly declared that all racial classifications – whether disadvantaging or helping minorities – must meet strict scrutiny.
II. Ironically, the Supreme Court first articulated the requirement for strict scrutiny for discrimination based on race and national origin in Korematsu v. United States, which upheld the constitutionality of the relocation of Japanese Americans during World War II. The Court declared: “[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.
III. …it is firmly established that race and national origin classifications must meet the most exacting standard of judicial review. Such discrimination will be tolerated only if the government can prove that it is necessary to achieve a compelling government purpose.
Pages 752 and 753: Constitutional Law 6th Edition (2019) – by Erwin Chemerinski
QUERY: OK. So based on this explanation – it sounds like you are open to the idea of what many would consider as “white passing” being accepted as eligible for Reparations; which I believe strengthens the legal idea of it being race-neutral since it would include some non-Black people.
As my family has the admixture of European, Native American, and African.
RESPONSE: Just about every Freedman / ADOS / Foundational Black American has the same genetic mixtures in different proportions with the African portion being the most highlighted for our purposes. I have a few members of my family that can “white pass” on the street. But their paperwork to a man says Negro / Black / African American, etc. In our instance and our purposes – regardless of phenotype – if their PAPERWORK (birth certificate, etc.) labels them as anything other than – Black / Negro / African American – that automatically takes them out of eligibility. We are too good at records today. Especially in the past fifty years.
QUERY: Got you.
RESPONSE: Would it be okay to make this conversation part of a blogpost (without identifying you – of course)?
QUERY: Definitely. I will continue to believe [that] using genetic lineage is a legally indisputable and constitutional method for anyone who may not have adequate paperwork beyond 1900. [There are] small pockets of our population, especially those who migrated north and West and lost connection to the South – including orphans, adopted, and others who can simply connect to their roots with a simple scientific test. I’d love to read the article.
END OF DIALOGUE
POST-DIALOGUE COMMENTARY
I
What is “Blood Quantum?” This is a highly controversial measurement of the amount of “Indian blood” that may be part of your genetics. If you believe you are Native American – this can affect your identity, your relationships, and whether or not you – or your children can become a citizen of the tribe that you belong to.
This was initially a system that the federal government imposed onto tribes in an effort to limit their citizenship (thereby limiting reparations expenditures as much as possible). Several Native nations, including the Navajos, and some specific Chippewa sub-tribes, still use this method as part of their citizenship requirements. And how tribes use a quantum varies from tribe to tribe. The Navajos require a minimum of 25 percent “Navajo blood.” The Turtle Mountain Chippewas require a minimum of 25 percent of any Indian blood, as long as it’s in combination with some “Turtle Mountain blood.” Understand Family – this is quite problematic.
Why is this problematic? Because tribes are highly racialized.
A good way to understand the problematics is to know that there is a history of Freedmen whom are Black individuals who were living as fully incorporated members of Indian tribes. And when the original tribal enrollments were taken (starting at the turn of the 20th Century), oftentimes those Freedmen were not included – even though those individuals were of mixed heritage: Black and Native American. And because of their Black appearance (phenotype malfunction!), they were listed on a separate roll. So at present, the ramification is that they do not have that original enrollee ancestor documented as a full tribal member. They do not have enough blood quantum, and therefore cannot be extended tribal membership.
Primary Native American identity is actually a political thing. And “Blood Quantum” is disturbingly related to something that American Freedmen are more familiar with. How about the “one-drop-rule?” As we should know – that “one-drop-rule” measured the amount of “Black blood” (How?) that Black folks had in society. This is phenotypic racism. An ensurance that every person that had that one drop would be circumscribed under Jim Crow – and earlier, fully enslaved.
“Blood Quantum” emerged out of the white mind as a way to measure “Indian-ness” through a construct of race. Their white-assed thinking was that over time, Indians would breed themselves out and eventually relieve the federal government of their legal duties to uphold treaty obligations and to slowly mitigate reparations payments to as close to nothing as possible. Is there a lesson for us here?
“Redbone?” – “High Yella?” Where’d that come from? OK?
As an extension of this conversation – read this article that was recently sent to me by Query. I think you will find this to be quite interesting. The lady in the middle of the first picture reminds me a little of Queen Mother Moore. From this – you can figure why the uncomplicated Darity standard is probably the best way to go.
They Look White – But Say They’re Black
II
As far as those that are adopted or orphaned: Adopted? The adopted person legally takes on the legal lineage of the adopting individual(s). So – if the adopting parent is a Freedman – upon the entry of the final adoption decree, the now adopted child is treated by law (in all possible and natural respects) as if he or she had been born to the adopting parents. That adopted child, therefore, gains the right to inherit from the adoptive parents and adoptive parents relatives. As long as that child stays within that legally relationed loop – there should be no problem. So, any kind of genetic testing would not be needed here. Even within a reparations context.
The only aspect of this situation that would have to be worked out through a commission – is the scenario where a Freedman child is adopted by white or other non-Freedman parents. And that is because that child’s biological parents’ parental rights were terminated – so that child would have no automatic legal rights to their inheritance or assets. That legal connection would be instead transferred to that child’s adoptive parents. There could be a special standard established for this.
Orphaned? In this case – we are talking about a living person that was orphaned and does not know who their parents are. In a first world country. This is a special case that does not require paperwork going back to 1900 and beyond. Even if an individual was abandoned in let’s say 1930 (as of this writing that would make him/her 93 years of age) any good genealogist can “construct” a lineage. It would have been nearly impossible to have been born in this country after 1900 and NOT leave some kind of potentially researchable and reconstructable trail. Impossible.
And since we now have the accurate government-generated data that Diasporans did not start coming into this country in substantial numbers until after 1965? And if this person was born within the second and third quarters of the 20th Century? OK? What are the chances that this individual is probably a Freedman? And that establishment can be done in certainty without any blood or DNA testing.
III
Complexity can introduce non-productive opposing arguments and the “what ifs” and “whataboutisms” that can open the door to more unneeded “ideas” – both valid and invalid. These late “additions to the issue” can be used by Reparations opponents to bog down a movement they don’t want to exist in the first place. Bifurcations, trifurcations, unnecessary details, and the hot divisions and special categories some of us come up with – these things only empower the enemy.
We are ethnically at a point of convergence now. We can no longer hang on to past disaggregations being fanned as a point of argument. Whether your lineage here began as indigenous, enslaved, free Negroes, part Native American, or whatever?
Understand:
Unless your lineage impossibly stayed genetically pure – socially isolated – and tribally separated from the rest of us every day from 500 years ago till now – you would be in the wrong space. Because if you were able to accomplish that – you are in the wrong place. You’d need to be about the business of pushing your own claim. And writing a book as well – because that would be one hell of an accomplishment.
This is American Freedmen space over here, doing something particular for us. (!) I think we as a practical legal and legislative strategy need to focus on our 21st Century relatedness rather than on 500-years-past disaggregated starting points. Blood Quantum? This is just my opinion Family. Please share and comment.
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FREEDMEN ABSOLUTE 