Limits of Legal Identity (The Mashpee Case)

In Whiteness as Property, Cheryl Harris states that the “riddle of identity” cannot be solved through a “search for essences” but must instead be understood in terms of “purposes and effects, consequences and functions” (1763). Here, she frames identity not as an objective fact to be discovered, but rather something actively produced through social and political processes. Harris questions “who is defining [identity], how the definition is constructed, and why the definition is being propounded” (1763). She then presents the Mashpee decision to show the consequences of ignoring these questions. The court concluded that the Mashpee were “incapable of legal self-definition,” using a rigid definition of tribal identity(1765). While the court sees the tribes intermingling with other groups as evidence that they had “lost their tribal identity” (1764), Harris sees the intermingling as “coerced adaptation” (1765). She claims that by treating the tribe’s intermingling as “voluntary surrender for gain,” the law strips communities of the authority to define themselves.

While I agree with Harris on the idea that the definition of race cannot be reduced to a singular “pure essence” and that it is often a tool of domination, I wonder how the courts may go about accounting for this. I believe Harris's response would be that the courts should critically analyze definitions of race before using them and that the courts should treat racial definitions as being socially constructed and politically loaded. Yet, the question still remains: how might legal institutions incorporate the contextual and historical understanding of identity that Harris advocates for without reintroducing arbitrariness through judicial discretion? I believe this tension suggests a structural limit in using historical theories of identity in legal doctrine, which Harris fails to resolve.


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