The presidential "he" and the "black white person"
« previous post | next post »
In response to my post earlier today on "Sex-neutral 'he': the constitutional question", David Seidman writes:
This has nothing directly to do with your post on the sex-neutral he, but I thought you might be interested in a concurring opinion by Justice Blackmun in a Supreme Court case involving an old statute dealing with law suits over land transactions between Indians and "white person[s]." Justice Blackmun read the term to include black persons, yellow persons, and anyone else who was not an Indian.
I quote his opinion in its entirety here:
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring.
I join the Court's opinion, but I write briefly to add a comment about my views as to the scope of 25 U.S.C. § 194.
Section 194 applies to a property dispute between an Indian and a "white person." The property dispute here is between Indians, on the one hand, and, on the other, nine individuals, two corporations, and the State of Iowa. See 575 F.2d 620, 622 (CA8 1978). The Court holds that "white person" includes an artificial entity and thus that § 194 applies in the dispute between the Omahas and the two corporate petitioners. Ante, at 2537-2538. Contrariwise, the Court holds that "white person" does not include a sovereign State, and thus that § 194 does not apply in the dispute between the Omahas and petitioner State of Iowa. Ante, at 2537-2538, 2543. The Court, however, does not expressly discuss § 194's applicability to the nine individual claimants.
*680 Since the Court nevertheless holds that "§ 194 applies to the private petitioners" without exception, ante, at 2543, it must be proceeding on one of two assumptions. The Court could assume, first, that all nine individual petitioners are Caucasians, and hence each literally is a "white person" under § 194. There is no evidence in the record, however, as to the race of these individuals. See Brief for Petitioners in No. 78-160, p. 30; Brief for United States 32 n. 25; Tr. of Oral Arg. 13. Since the burden of proving the factual predicate for § 194's applicability presumably rests on the Indians who seek to invoke it, the Court, in holding § 194 applicable to the individual petitioners here, could not properly rely on this first possible assumption.
The Court could assume, second, that "white person" in § 194 refers, not to a Caucasian, but to a "non-Indian" individual. On this assumption, the race of the individual petitioners (so long as they are not Indians) would be irrelevant in determining § 194's applicability. That this is in fact the assumption the Court makes is suggested by its decision to ignore the adjective "white" in holding each of the corporate petitioners to be a "white person," and by its refusal to follow United States v. Perryman, 100 U.S. 235, 25 L.Ed. 645 (1880), where it was held that "white person," as used in another section of the Non-Intercourse Act, did not include a Negro. Ante, at 2537 n. 16.
The Court seems to hold implicitly, therefore, that "white person" in § 194 includes any "non-Indian" individual. I would prefer to make this holding explicit. In my view, any other construction of § 194 would raise serious constitutional questions. To construe § 194 as applicable to disputes between Indians and Caucasians, but not to disputes between Indians and black or oriental individuals, would create an irrational racial classification highly questionable under the Fifth Amendment's equal protection guarantee. To *681 avoid this result, § 194's reference to a "white person" must be read to mean any "non-Indian" individual or entity, and I so interpret the Court's holding today. To the extent that Perryman is inconsistent with this reading, I must regard that case as overruled sub silentio.
U.S.Iowa,1979.
442 U.S. 653, 99 S.Ct. 2529, 61 L.Ed.2d 153
I find this particularly interesting because the case involves the Omaha Indians. I spent the summer of 1961 living with an Omaha Indian family and working in the tribal store. I learned almost nothing of the language, but they taught me (or said they taught me) the word for "white man" so I would know when people were talking about me, even if I didn't know what they were saying. I think I also learned the word for "black man" — which, as I recall, was the word for "white man" with a modifier added after it. I took that to mean that the literal translation was "black white man." That struck me as confirming Justice Blackmun's view.
[Update — David Eddyshaw writes:
When I lived in Bawku in Northeastern Ghana I had a Sri Lankan colleague who used to get quite annoyed about being described (as he always was) as a "White Man" by the locals.
The actual words for "white man" are interesting (one got very used to them, as small boys shout them out after you wherever you go…)
In Kusaal, it's "Nasaara", ultimately from Arabic "Christians" presumably by way of "outsider".
In Hausa, it's "Batuure", apparently via a long chain of subtle shifts of meaning from "Turan" "not-Iran".
The Nasaara, of whatever precise origin, naturally all speak Nasaal, "Whitemanese", used for "English" in Ghana and "French" in Burkina Faso. The typical Kusaasi villager's understanding of the subtleties of European ethnicity is hardly greater than a typical European's understanding of Africa ….
Some further etymological thoughts on Batuure and its relative, by Language Hat and his commenters, are here.]