The Colorblind Turn in Indian Country: Lumbee Indians, Civil Rights, and Tribal State Formation

Abstract

In the years after World War II, the United States federal government haltingly eliminated race-conscious law, a defining feature of the American tradition of government since the republic’s founding that seemed suddenly incongruous with the nation’s emerging role as a global advocate for ethnoreligious tolerance, free-market capitalism, and liberal universalism. Although the gradual dismantlement of Jim Crow segregation and the passage of civil rights legislation designed to remedy African American disfranchisement dominate the historical memory of the era, the colorblind turn also revolutionized the government’s relationship with American Indians. Although the Constitution, judicial precedent, and treaty law defined that relationship as one between unequal sovereigns, postwar federal legislators, jurists, and bureaucrats grappled with the persistent historical conflation of nationhood with race and struggled to separate a purely political definition of Indian status from this color-conscious taint that threatened to undermine the entire legal edifice.

The Lumbee Indians of North Carolina sat at the confluence of these contested categories of race and indigeneity. After decades of relative isolation in their impassably swampy homelands, Lumbees entered a marriage of convenience with North Carolina’s Jim Crow regime in the late nineteenth century. Lacking a reservation, treaties, and most other historical artifacts of the federal relationship, the Indian group came up empty in their repeated efforts to secure federal assistance but nevertheless built an unconventional tribal government centered on their state-authorized, segregated, all-Indian public schools and college. Amid the colorblind turn, federal authorities deemed these tribal institutions illegally discriminatory and slowly desegregated them. Reeling Lumbee political leaders again sought federal recognition of their tribal status but ran headlong into the first federal efforts to square US obligations to indigenous peoples with nascent race-neutral ideology, namely by severing or “terminating” its relationships with tribes altogether. A unique byproduct of this so-called termination era, the 1956 Lumbee Act simultaneously acknowledged the group’s Indian identity and forbade receipt of federal services based on that status. Atop this legal and institutional wreckage, a small, mobile, educated cadre of Lumbee activists and bureaucrats painstakingly wrung support from an Indian affairs apparatus rejuvenated after the repudiation of termination and enlarged by continued, fitful attempts to redefine the federal relationship. Although tribal recognition continued to elude them, Lumbees assembled a convincing approximation of the type of constitutional, administrative tribal government emerging across Indian Country. As Lumbees interfaced with the colorblind Indian affairs regime, their marginal and unique status illuminated the growing autonomy of the federal administrative state, the changing balance of power within US federalism, and increasing importance of tribal sovereignty as a counterweight to civil rights law.