Abstract

Excerpted From: Gretchen D. Yelmini, “The Color Question in the Supreme Court”: Black, White, and Red in United States v. Perryman, 61 Tulsa Law Review 237 (Winter, 2026) (385 Footnotes) (Full Document

“ The Color Question in the U.S. Supreme Court.” So began the news coverage of United States v. Perryman in 1879. Fourteen years after the Civil War ended, this would be the first time the Supreme Court would be asked to determine what exactly “ White” meant under the law. It was, as the Evening Star described it, “ [a]n interesting question” in need of a resolution. Although later news coverage would reframe this as a “ “ somewhat paradoxical question,” it was anything but. White had no legal definition, 5 and the statute at issue was intended to prevent harm to so-called “ friendly Indians.” Moreover, the statute was last amended in 1834 when slavery was still legal, and the appellant argued that in 1879, “ this odious discrimination, on account of color , should be wiped forever out.”

There was a legal basis for this argument. The 1866 Civil Rights Act, by its terms, stated “ [t]hat all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.” The Fourteenth Amendment went further, declaring that “ [a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” In a world upended by the Civil War, where the legal construction of race was still being formulated, it could be assumed that “ White” meant an American citizen. By contrast, Indians, who had not yet been deemed citizens, were still “ Indians.”

This question was not merely an intellectual exercise. The answer would impact the ability of Indigenous peoples to recover from indigent Black people who damaged or stole their property. If the Court were to interpret the term “ “ White” to mean “ non-Indian,” Indigenous peoples could recover for property damage by all perpetrators, regardless of race . At a time when westward expansion grew exponentially and crimes in Indian Country were under-prosecuted, requiring the United States to indemnify Indigenous peoples for all property damage would have incentivized more protection within Indian Country. However, the Supreme Court adopted the narrower interpretation, and so Perryman faded into obscurity, forgotten and unexamined by legal historians and scholars of American Indian Law.

This article puts Perryman into a historical and legal context. Perryman illustrates how racial classifications were formulated in the context of Indian law and how those classifications came to shape jurisdiction, even as Indigenous peoples never fit neatly in these court-constructed definitions. This article examines this process through the history of the litigants, the litigation, and larger disputes surrounding jurisdiction and the future of Indian Territory at the end of the nineteenth century. In doing so, this article builds upon existing scholarship regarding how courts came to define race and provides additional insight into the early years of the Court of Claims in the context of depredation claims filed by Indigenous people. By analyzing the arguments that underlie Perryman , this article also provides new insight into the Supreme Court under Chief Justice Waite, which later decided foundational Indian Law cases such as Ex parte Crow Dog 13 and United States v. Kagama . Ultimately, Perryman emphasizes that scholars must continue to dive into the history behind Indian Law cases and how conceptions of race have shaped law and jurisdiction in America.

This article also provides additional detail on the legal history of whiteness in the United States. In a groundbreaking book, Professor Ian Haney Ló pez examined the legal construction of race through the lens of naturalization cases, arguing that these cases demonstrate that courts literally and figuratively naturalized White identity. Haney Ló pez documented two ways courts achieved this: (1) by treating this group as a natural, unchanged physical phenomenon and (2) by employing common knowledge to define who was, and was not, White. United States v. Perryman is an earlier iteration of the Supreme Court grappling with whiteness after the passage of the Reconstruction Amendments. The Court’s 1880 decision in Perryman formulated what Professor Haney Ló pez describes as the common knowledge definition of “ White.” Perryman ’s rejection of the argument that citizenship rendered a Black person White for the purposes of the Trade and Intercourse Act of 1834 was the first in a series of Supreme Court decisions reifying the legal significance of whiteness and its intersections with the Fourteenth Amendment. Over time, these interpretations grew stronger. For example, sixteen years later, Plessy v. Ferguson upheld separate train cars for Black and White passengers, holding that the Fourteenth Amendment “ could not have been intended to abolish distinctions based upon color .” These cases illustrate how the oppressions of Black and Indigenous peoples were integral to the development of whiteness. That is because race is a legal construct and not a natural category. Courts have defined “ White,” “ Black ,” and “ Indian” through legal precedent, with White serving as an oppositional ideal to those persons who are considered non-White.

Perryman was also an early recognition by the Court that Indians were not a race but instead a political category. Perryman, the litigant, was a Muscogee leader from a wealthy slave -owning family. He neither embraced nor denied his Blackness , even as he identified solely as an Indian. Despite being phenotypically Black , throughout the litigation, Perryman’s status as an Indian was never challenged. At a time when litigants continue to raise equal protection challenges against federal recognition of tribal sovereignty, this case serves as a reminder that even as race was first formulated under law, Indian identity existed outside of, and separate from, racial classifications.

Part I provides an abridged history of the Reconstruction era in the Muscogee (Creek) Nation 23 in the context of the Nation’s 1866 Treaty with the United States. It discusses how race and efforts to establish a territorial government led to jurisdictional struggles and a lack of enforcement within Indian Territory.

Part II begins the discussion of United States v. Perryman by focusing on the litigant, Sanford Ward Perryman. Perryman was not only the victim in the underlying case, his colorful history touches upon conceptions of race and jurisdictional struggles within Indian Country. A member of the prominent Perryman family, he served as Speaker of the House of Warriors, helped negotiate the 1866 treaty between the United States and the Muscogee (Creek) people, and had a complicated relationship with his own racial identity. By examining Sanford Perryman, we gain a deeper, more personal understanding of how these issues intersect and can better understand the litigant himself.

Part III traces the litigation as it made its way from the Western District of Arkansas to the Supreme Court. This Part also provides historical background on the various courts, the underlying statutes, and the witnesses, as well as a discussion of the briefs and decisions along the way.

Part IV places Perryman in context. It discusses the scholarship of Professor Haney Ló pez and his seminal work, White by Law . It first suggests that Perryman and the ways that the Waite Court interpreted the Trade and Intercourse Act build upon Haney Ló pez’s scholarship, providing a richer understanding of how courts came to define race . It then suggests that in the context of Indian law, history serves as another mechanism that courts and Congress employ to shape the contours of race and tribal citizenship. This, by extension, shapes the bounds of tribal jurisdiction. This article then briefly concludes.

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In 1897, the Court of Claims revisited Perryman and criticized its central holding in Janis v. United States . In doing so, it referred to Perryman as “ a somewhat remarkable case,” because the Supreme Court held that the Government was not liable to pay for a crime perpetuated by a Black man in Indian country under circumstances that would have rendered the United States liable if the perpetrator were White. While the decision in Perryman is indeed “ somewhat remarkable,” so is what it tells us about Indian Law and policy in the late 1800s. Perryman not only defined who was “ “ White” under the statute, but it also provided courts with an early example that the equal protection clause did not contemplate rendering “ Indian” a race . As Perryman’s history demonstrates, “ Indian” is not so easily defined as a singular race . Instead, Native people can present phenotypically as any race and fall outside the legally constructed contours of race under the law. Meaning, “ Indian” is akin to a political classification, as Mancari held nearly a century after Perryman was decided. Thus, Perryman warrants further study and inclusion in the ongoing challenges to tribal sovereignty on equal protection and racial grounds.

J.D., University of Connecticut School of Law; B.A., University of Pittsburgh.