On November 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 December 21, 2022, the same was physically mailed to the SCOTUS. We did receive feedback from two very notable D.C. 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 in the Affirmative Action cases: SFFA v. Harvard and SFFA v. UNC.
Freedmen as an American Legal Status
American Freedmen families — 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.
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."
"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.
Status, Not Race
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 'Status' as:
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.
The 'American Freedmen' families today are descendants of those emancipated persons. The status of 'Freedmen' is not one that is terminable. The courts also understood that this particular status 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." — Fairfield v. Lawson, 50 Conn. 501 (1883)
The Freedmen's Bureau Was Not Race-Based
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, quoted the Commission of Freedmen:
"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."
Sumner also laid out the intent of the proposed bureau: "It provides exclusively for freedmen, meaning thereby 'such person as were once slaves,' without undertaking to embrace persons generally of African descent." Sumner and ultimately the Congress who ratified HR 51 understood that it was not because of race that emancipated persons deserved protected status, but because this particular group, due to slavery, made them "citizens with disabilities."
Justice Thomas & Justice Kavanaugh's Concurrences
In Justice Thomas' concurring opinion in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (June 29, 2023), the term "freedmen" is described as a "formally race-neutral category" that does not include "blacks writ large." Justice Kavanaugh's exchange during oral arguments further established that benefits given to descendants of formerly enslaved persons (Freedmen) would not be race-based — they would be based on status as having been enslaved, not skin color.
Conclusion
United Sons & Daughters of Freedmen 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 the Court later interpreted in Section 2 of the 13th Amendment in Jones v. Alfred H. Mayer Co. — to "abolish all badges and incidents of slavery."
Reconstruction was abandoned and there are still numerous badges and incidents of slavery that today's American Freedmen families face. The badges and incidents of slavery can be seen in the significant socioeconomic disparities between those of American Freedmen origin — who experienced generations of targeted harms — and those not of American Freedmen origin.
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 lingering badges and incidents of slavery.
Sincerely,
Nyhiem Way
President, United Sons and Daughters of Freedmen