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Most critical race theorists assume that the racial playing field in America is federal and state law and ignore the rising importance of American Indian law or the law of American Indian tribes. When questions of race discrimination arise, advocates for the victims of race discrimination turn exclusively to the Constitution or federal and state civil rights statutes. Even where the alleged perpetrators of discrimination are Indian tribes, advocates still turn to the Constitution and federal or state law. These advocates ignore or are unaware of the advantages of seeking relief from the proper sovereign—in this case, Indian tribes—because they fail to recognize the racial hierarchies in question. For the purposes of this chapter, most discussions of race identify rights as the central paradigm, metaphor, or fiction for challenging white supremacy because they posit the black-white binary and its handmaiden, antidiscrimination law, as the framework for understanding racial hierarchy. This chapter offers a different fiction, through the example of the black Freedmen, to ground a different role for law for promoting freedom and equality.

DOI: 10.1057/9780230101722_5

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