Resurgent racism

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Time is out of joint. The year is 2007, and 142 years have elapsed since the antislavery amendment to the Constitution.

Fifty-three years have uncurtained since the United States Supreme Court held in Brown v. Board of Education that racially segregated schools were inherently unequal and unconstitutional. Forty-two years have passed since Dr. Martin Luther King, Jr.'s electrifying dream of a nation where persons "will not be judged by the color of their skin, but by the content of their character." Forty-one years have unfolded since the Supreme Court declared in Anderson v. Martin that racially identifying candidates on ballots unconstitutionally encouraged racial bloc voting.

Twelve years have come and gone since Justice Antonin Scalia in Adarand Constructors v. Pena underscored that in the eyes of the law there is only one race in the United States. It is American.

Yet racism is resurgent in 2007. Consider the following.

Last Saturday, Cherokee Nation members voted to revoke the tribal citizenship of approximately 2,800 Freedmen, i.e., the descendants of black slaves owned by Cherokees, free blacks who were married to Cherokees and the children of mixed-race families known as black Cherokees, all of whom joined the Cherokee migration to Oklahoma in 1838 and suffered in the grim Trail of Tears.

The revocation vote expelled Freedmen with a full-blooded Cherokee grandfather, but permitted membership to blond people of European ancestry who are 1/1000th Cherokee. More than 75 percent of Cherokee Nation enrollees have less than one-quarter Cherokee blood.

In 2000, the Seminole Nation expelled Freedmen, but was compelled by the Bureau of Indian Affairs and federal courts to re-enroll them. The Creek Nation has demonstrated a similar racist ambition. Darren Buzzard, a Cherokee advocate for expelling Freedmen, sent an e-mail last summer that sounded like an echo of the Ku Klux Klan: "Don't let black freedmen back you into a corner. PROTECT CHEROKEE CULTURE FOR OUR CHILDREN. FOR OUR DAUGHTERS... FIGHT AGAINST THE INFILTRATION."

The resurgent racism in Indian Country should come as no surprise. The U.S. 9th Circuit Court of Appeals recently sustained racially exclusive premier schools for Native Hawaiians. And the United States Congress is poised to create a race-based government for them. The pending "Native Hawaiian Government Reorganization Act of 2007," slated for a markup this week in the House of Representatives, would endow persons of Native Hawaiian ancestry with a right to establish their own sovereign entity. Non-Native Hawaiians would be excluded and exposed to racial discrimination by Native Hawaiians. So much for E Pluribus Unum, a colorblind Constitution and equal justice for all.

Justice Anthony Kennedy amplified in Rice v. Cayetano (2000): "One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities. An inquiry into ancestral lines is not consistent with respect based on the unique personality each of us possesses, a respect the Constitution itself secures in its concern for persons and citizens. ... The law itself may not become the instrument for generating the prejudice and hostility all too often directed against persons whose particular ancestry is disclosed by their ethnic characteristics and cultural traditions. 'Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.' "

Despite Justice Kennedy, section 2 of the Voting Rights Act fosters racial bloc voting and encourages the stereotype that all members of minority races think alike and can be fairly represented only by candidates of their own race. Section 2 invalidates any election rule that "results" in a chronic inability of a racial minority to have its favored candidates elected. Accordingly, racial gerrymandering is routinely indulged in drawing legislative districts to create "safe" seats for blacks, Hispanics, or Asian Americans. White candidates in these racial set-aside districts risk the stigma of epithets evoking images of plantation owners or Simon Legree.

Justice Harry Blackmun perniciously insinuated in Regents, University of California v. Bakke (1978) that race must be taken into account in fashioning social policy to get beyond racism. To be sure, individuals who have been injured because of racial discrimination enjoy a right to be made whole. But the idea that racial or other groups have rights to command quotalike representation in all walks of life wars with the central ambition of the Enlightenment, as enhanced by the Civil War Amendments -- to make destiny turn on individual merit in lieu of race, religion, caste or noble title.

The 110th Congress should set time right. It should prohibit racial discrimination by Indian tribes, reject a Native Hawaiian government, amend section 2, and make colorblindness the soaring signature of the United States in all its laws and policies.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.