Our Amicus to the Supreme Court

​Updated: Jun 18

​Nov 30, 2022, the United Sons & Daughters of Freedmen emailed the below amicus to the Supreme Court of the United States in hopes to aid in their understanding of the term "Freedmen" being a race neutral status as opposed to being a race conscious term. On 12/21/2022, the same was physically mailed to the SCOTUS. We did receive some feedback from two very notable DC attorneys who were cc'd in the email. Below, we present the family with a copy of the letter we submitted to the Supreme Court Affirmative Action cases: SFFA v. Harvard and SFFA v. UNC.

Freedmen as an American Legal Status

American Freedmen families1, those whose ancestors were emancipated in America, have historically been classified by race as African, Negro, Colored, Mulatto and Black as well as by the unofficial ethnic designation of “African American,” which was ultimately combined with and made synonymous to the Black race by the OMB (Office of Management and Budget) in its 1997 revision to Federal Directive 15. (Note: By this action, the intent to use the term African American to denote a distinct ethnic group with a specific American ancestry and cultural continuity was nullified by conflating it with the broad meaning of Black as listed in the racial classifications of the OMB’s Federal Directive).

It is commonly misunderstood that the term Freedmen is only applied to those who were emancipated in 1865 however, the term was applied to those freed before 1865. For instance, in the State of New York, slaves were freed in 1827. The status of these formerly enslaved individuals changed as they went from private bondage to near full capacity as citizens of the State of New York. In most cases, Freedmen were able to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and exercise full and equal benefit of all laws and proceedings for the security of their person and property, as was enjoyed by white citizens, including suffrage rights which allowed Freedmen in New York to vote if they owned property.

In 1863, the ‘American Freedmen's Inquiry Commission’ was created under U.S. Secretary of War Edwin Stanton. The American Freedmen’s Aid Commission was organized in the City of New York in 1865. Subsequently, Walter R. Vaughan’s publication containing his Pension Bill introduced to Congress by Rep. William Connell (R) of Nebraska as H.R. 11119 in 1890 identifies ‘American Freedmen’ as being “Men released from slavery” or “Persons of color emancipated from slavery.”

Understanding the term ‘Freedmen’ as an intended status as opposed to being a racially relative identifier is significant as certain African Americans realign with the usage of ‘American Freedmen’ for delineation and disaggregation purposes. Oxford languages defines ‘Status’ as “the relative social, professional, or other standing of someone or something.” Black’s Law dictionary similarly defines and expounds on ‘Status’ as being:

Standing; state or condition; social position. The legal
relation of individual to rest of the community. The
rights, duties, capacities and incapacities which
determine a person to a given class. A legal personal
relationship, not temporary in its nature nor terminable
at the mere will of the parties, with which third persons
and the State are concerned. Holzer v. Deutsche
Reichsbahn Gesellschaft, 159 Misc. 830, 290 N.Y.S. 181,
191. While term implies relation it is not a mere
relation.

“American Freedmen” means the 4 million men, women and children emancipated in 1865 by way of the 13th Amendment to the United States Constitution. It also includes the progeny of those historically identified as Negroes, Blacks, Coloreds or Mulattos of African descent who gained freedom from slavery prior to 1865 by way of either the Emancipation Proclamation, being contrabands under the Confiscation Acts, being Fugitives in accordance to Article IV, Section 2, Clause 3 of the U.S. Constitution as well as the Fugitive Slave Acts, Freedom Suits, Gradual Abolition or Emancipation in northern states, purchasing their own freedom, manumission by owners or enlisting and fighting as Patriots during the American Revolution.

The ‘American Freedmen’ families today are descendants of those emancipated persons as cited in the definition above. The status of ‘Freedmen’ is not one that is terminable. The courts also understood that this particular status (Freedmen) was a
transferable one.

“The term “freedmen ” was one generally applied to the
lately emancipated slaves and their descendants… The
court further finds that the term “freedmen,” as used in
the will, refers to that class of persons in the United
States who were emancipated from slavery during our late
civil war or by its results, and embraces also the
descendants of such persons.”
2 [emphasis added]

Chickasaw Freedmen, Choctaw Freedmen, Seminole Freedmen, Creek Freedmen, Muskogee Freedmen, etc., are names still retained by those racially classified as Blacks but who were enslaved by those tribes to which the United States of America are suzerain. ‘Freedmen’ by definition has never historically been used as a racial designation and it cannot be confined or confused with race in the same way that the status of “immigrant,” is not a racial designation and cannot be confined to the ‘Hispanic,’ ‘Asian’ or ‘White’ races. The race of the Freedmen was incidental to their new social standing in this country and was imposed by those of European ancestry who took on the name ‘white’ as their social identifier.

The terms Freedman (singular) or Freedmen (plural) aren’t new terms. The online etymological dictionary lists two different meanings for Freedman. We will cite one:

libertine (n.)
late 14c., "a freedman, an emancipated slave," from Latin
libertinus "condition of a freedman; member of a class of
freedmen," from libertus "one's freedmen, emancipated
person," from liber "free"

Races are not biologically differentiated groupings but rather social constructs. Freedmen status transcends America’s racial social construction and therefore cannot be confined to any “race” of people; it merely denotes and connotes a previous condition (slavery) and current standing (freedom). Gerald J. McGinley, writing for the Notre Dame Law Review, noted that in ancient Rome:

“For a man to have legal capacity he must be free. The
Romans contended that all men were born free, but that
slavery was an institution common to all nations as a
necessity for society. However, they tried to eliminate
its harsh features. It was a common occurence to free
slaves; they were then called libertini, or freedmen. They
had very limited rights until the time of Justinian, but
this great lawyer gave them all the liberties of a freeborn
person except that they must show allegence to their
former master.”3

Another oft-cited ahistorical assertion is that “refugees” during the Civil War were mostly white. 500,000 (five hundred thousand) slaves escaped and were classified (de-jure) as refugees. The de facto name given to these escaped persons was “Contrabands” or “Contrabands of war.”4 Conversely, there were some whites who, affected by the war, were also classified as refugees.

The purpose of establishing the Freedmen’s Bureau for newly emancipated persons was to protect the formerly enslaved from macula servitutis the “stain of slavery.” Making the case for establishing the Freedmen’s Bureau, Charles Sumner, former
Massachusetts Senator, citing the Commission of Freedmen (later called the American Freedmen's Inquiry Commission) in his report5 quoted:

“We need a freedmen’s bureau, not because these people
are negroes, but because they are men who have been for
generations despoiled their rights.”6

Sumner also laid out intent of the proposed bureau in what he called “main features”:

It provides exclusively for freedmen, meaning thereby
“such person as were once slaves,” without undertaking to
embrace persons generally of African descent.7

Sumner, and ultimately the Congress who ratified HR 51 (An Act to establish a Bureau For the Relief of Freedmen and Refugees) understood that it was not because of race or ethnic descent that emancipated persons (Freedmen) deserved protected status but because this particular group, due to slavery, made them “citizens
with disabilities.”8 Sumner noted that the bureau would be established to “protect these persons in the enjoyment of their rights, to promote their welfare, and to secure to them and their posterity the blessings of liberty.”9

What the federal government did for Japanese Americans with passage of the Civil Liberties Act of 198810 was not based on race, it was due to discrimination and harms to this particular group. Japanese Americans are, according to the OMB, a part of the Asian racial classification and yet, racial identity did not factor into the federal government’s decision to right the wrong done to citizens of that population group. “Strict scrutiny” was not a factor in that instance.

In conclusion, United Sons & Daughters of Freedmen, et al, assert that as attested to and accepted during the formation of the Freedmen’s Bureau, benefits given to the formerly enslaved and their progeny were not race-based. Those benefits were given because those people held the status of “Freedman” and there was a
compelling governmental interest for Congress to use its legislative power, as this court later interpreted in section 2 of the 13th Amendment of our Constitution in Jones v. Alfred H. Mayer Co, to “abolish all badges and incidents of slavery”.

Reconstruction, however, was abandoned and there are still numerous badges and incidents of slavery that today’s American Freedmen families - the descendants of the emancipated - are faced with. Today, the badges and incidents of slavery can be seen in the huge socioeconomic disparities between those of American Freedmen origin, who experienced generations of targeted harms and those not
of American Freedmen origin. One of the notable aforementioned disparities in persistence is the underrepresentation of American Freedmen student enrollments (not just “Black” enrollments) at universities such as Harvard and UNC. Summarily, we submit that benefits given to today’s American Freedmen, as were given to their
formerly enslaved ancestors not only would be void of the basis of race but the compelling interest still exists to abolish this and other lingering badges and incidents of slavery.

Sincerely,
Nyhiem Way
President
United Sons and Daughters of Freedmen

1 The term ‘Freedmen’ is a status in American society that has been invoked during recent Supreme Court sessions involving issues more or less critical to American Freedmen families today. (See: NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., ET AL. v. BRUEN, SUPERINTENDENT OF NEW YORK STATE POLICE, ET AL.; JOHN H. MERRILL,
ALABAMA SECRETARY OF STATE, ET AL., v. EVAN MILLIGAN, ET AL.)
2 Fairfield v. Lawson, 50 Conn. 501 (1883) Jan. 1883 · Connecticut Supreme Court 50 Conn. 501 Samuel E. Fairfield, Executor, vs. Edwin N. Lawson and others
3 Gerald J. McGinley, Roman Law and Its Influence in America, 3 Notre Dame L. Rev. 70 (1927). Available at: http://scholarship.law.nd.edu/ndlr/vol3/iss2/2
4 Masur, K. (2007). “A Rare Phenomenon of Philological Vegetation”: The Word “Contraband” and the Meanings of Emancipation in the United States. The Journal of American History, 93(4), 1050–1084.
5 Sumner, C. (1864). A Bridge from Slavery to Freedom. United States: H. Polkinhorn & son, printers.
6 Ibid, pg. 9
7 Ibid, pg. 8
8 A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875 Congressional Globe, House of Representatives, 37th Congress, 2nd Session Page 1639
9 Sumner, pg. 8
10 The Civil Liberties Act of 1988 (Pub.L. 100–383, title I, August 10, 1988, 102 Stat. 904, 50a U.S.C. §1989b et seq.) is a United States federal law that granted reparations (which included $20,000 in direct payments) to Japanese Americans who had been wrongly interned by the United States government during World War II.