Law, Justice, and Society: A Sociolegal Introduction

1. Law, Justice, and Society:A Sociolegal Introduction Chapter 13 Racial Minorities and the Law

2. Racial Minorities and the Law African Americans Slavery Not in Constitution • Constitution and Declaration of Independence contain language that appears to outlaw slavery • Somerset v. Stewart slavery unlawful in England • Constitution has language supportive of slavery • Article I, sections 9 and 2; Article IV, section 2

3. Racial Minorities and the Law African Americans (cont.) • Amistad case--United States, Appellants v. The Libellants and Claimants of the Schooner Amistad, 1841 • Dred Scott case--Scott v. Sandford, 1857 • USSC approved the continuation and the expansion of slavery • Blacks not considered persons- overturned the Missouri Compromise because Congress no authority to prevent slavery in the territories

4. Racial Minorities and the Law African Americans (cont.) Emancipation and the Reconstruction Period • after the Emancipation Proclamation, Congress passed Thirteenth Amendment • Freedman’s Bureau supplied former slaves with food, clothing, schools, and land • African Americans served on juries and held office • desegregation was normal

5. Racial Minorities and the Law African Americans (cont.) Emancipation and the Reconstruction Period (cont.) • South passed Black Codes • passed under the assumption that freed slaves would not work unless forced to • struck down by Fourteenth Amendment • Fifteenth Amendment granted suffrage to African American males

6. Racial Minorities and the Law African Americans (cont.) Jim Crow laws • segregation laws • underpinned by racism: different from xenophobia and ethnocentrism in that the disliked group is in close contact with the racist group • Congress passed Civil Rights Act of 1875 • resulted in the Civil Rights Cases (1883) • private entities and individuals can discriminate

7. Racial Minorities and the Law African Americans (cont.) Jim Crow laws • resulted in stripping away of integration • Plessy v. Ferguson, 1898 • separate but equal doctrine • William v. Mississippi, 1898 • upheld disenfranchisement • Upheld poll tax and literacy test to vote

8. Racial Minorities and the Law African Americans (cont.) Lynching and Protest • 1892-1968, over 4,743 persons were lynched • 70 percent were African American • after World War I, returning African American soldiers, along with power of the NAACP, fought against this • resulted in backlash and revival of the KKK • lynching increased from 36 in 1917 to 60 in 1918 to 76 in 1919

9. Racial Minorities and the Law African Americans (cont.) Lynching and Protest (cont.) • states had (unenforced) anti-lynching laws • no such federal law • struck down in Congress in 1918 and 1940; passed one in 1968 as part of the Civil Rights Act • in 1981, two white men were convicted for lynching of an African American • one was the first white man since 1913 to be executed for murdering an African American • signaled the decline of the KKK

10. Racial Minorities and the Law African Americans (cont.) “We Shall Overcome” • World War II was the end of Jim Crow • Fair Employment Practices Committee • Commission on Higher Education • Smith v. Allwright, 1944 • Smith denied right to vote in democratic primary claimed a private organization • Court ruled in Smith’s favor • paved the way for Brown v. Board of Education, 1954

11. Racial Minorities and the Law African Americans (cont.) Congressional Activity • desegregation did not really happen until Congress passed Civil Rights Act of 1964 • power over the purse • voting rights did not happen right away after Smith until Voting Rights Act of 1965 • Civil Rights Act was upheld in Heart of Atlanta Motel v. United States (1964) • Motel wouldn’t rent rooms to blacks • Court ruled this violated the Interstate Commerce clause • Voting Rights Act was upheld in South Carolina v. Katzenbach (1966)

12. Racial Minorities and the Law African Americans (cont.) Cold War and International Pressure • U.S./USSR and the battle over minds • the “Negro problem” in the United States • government filed briefs in civil rights cases supporting civil rights due to the image of the United States in the international community

13. Racial Minorities and the Law African Americans (cont.) How Far Have We Come? • either a “rousing success” or a “long way to go”

14. Racial Minorities and the Law American Indians Early Years • practiced physical and cultural genocide as official policy • hostilities increased as European settlers migrated more westerly • British government "protected" Indians under the Proclamation Act of 1763 • Gave land west of Appalachian Mountains to the Indians • Continental Congress "protected" them under the Northwest Ordinance • Land to expand west could not be taken without consent

15. Racial Minorities and the Law American Indians (cont.) Early Years (cont.) • Constitution granted quasi-independence to Indians • Treaty of Fort Pit recognized their sovereignty

16. Racial Minorities and the Law American Indians (cont.) Marshall Trilogy • Johnson v. McIntosh, 1823 • Discovery Doctrine • Nations that discovered land had ultimate title, so Indians could not sell to private citizens • Cherokee Nation v. Georgia, 1831 • domestic dependent nation • Cherokee had no jurisdiction to sue when Georgia took land in violation of boundary agreement • Worcester v. Georgia, 1832 • federal government (not the states) had authority over Indian affairs

17. Racial Minorities and the Law American Indians (cont.) Period of Removal • Indian Removal Act • Supposed to be voluntary but Chiefs pressured to sign • Dakota Sioux and Oklahoma • Standing Bear v. Crook, 1879 • Indians are people and had a right to leave reservation • Right to habeas corpus

18. Racial Minorities and the Law American Indians (cont.) Assimilation and Cultural Genocide • government encouraged destruction of buffalo • 1871-- treaties could no longer be made; rather, Congress would unilaterally deal with Indians • however, treaties previously entered into with Indians should still be upheld • breaking treaties was nevertheless supported by USSC in Cherokee Tobacco case of 1871 • Government had a right to tax Cherokee tobacco sales

19. Racial Minorities and the Law American Indians (cont.) Assimilation and Cultural Genocide (cont.) • termination of treaty making and ending treaties rendered Indians as wards of the state--assimilation period lasted until 1934 • civilized and Christianized • Bureau of Indian Affairs • Ex Parte Crow Dog (1883) • Indians could enforce justice for Indian crimes committed on the reservation • Major Crimes Act of 1885 • Gave federal government jurisdiction over seven crimes • upheld in United States v. Kagama (1886)

20. Racial Minorities and the Law American Indians (cont.) Assimilation and Cultural Genocide (cont.) • General Allotment Act of 1887 • division of reservation lands • sellable to Anglo Americans • from the time of the Dawes Act to 1934, Indians lost about two-thirds of their land to white Americans • Jim Crow laws existed to segregate Indians • upheld in Elk v. Wilkins, (1884) denied voting rights • Lone Wolf v. Hitchcock, (1903) allowed taking of Indian lands

21. Racial Minorities and the Law American Indians (cont.) The Beginning of the End • Indian Citizenship Act of 1924 • Gave all Indians American citizenship • Indian Reorganization Act of 1934 • Ended practice of cultural genocide • Return to tribal governance (overturned Dawes) • Retrieve their language, religions, and customs • Terminationpolicyin 1953 (assimilate mainstream) • Intended to be pro Indian, but wasn’t • devastated tribal welfare and independence • Leave reservations and move to urban areas • Indian Self-Determination Act of 1975 • Increasing Indian militancy lead to end of termination policy • Alcatraz, occupation of BIA headquarters, Wounded Knee

22. Racial Minorities and the Law American Indians (cont.) How Far Have We Come? • recompense and United States v. Sioux Nations, (1980) Sioux entitled to 100 million compensation • Oliphant v. Suquamish, 1978 • Nevada v. Hicks, 2001 • These cases denied legal jurisdiction over non-Indians in Indian lands • Only real exceptions to recent favorable rulings

23. Racial Minorities and the Law Asian Americans • Chinese Exclusion Act of 1882 • passed despite unconstitutionality of similar legislation passed in regards to Europeans • In Re Ah Yup, (1878), only European and African could become citizens • United States v. Wong Kim Ark, (1898) • Asians born in the U.S. could become citizens • Ozawa v. United States, 1922 • Foreign born Asians could not become citizens • Executive Order 9066 • Korematsu v. United States, (1944) relocation allowed during time of war • Ex Parte Endo, (1944) could not detain loyal citizen • from "yellow peril" to "model minority"

24. Racial Minorities and the Law Today’s CJ System • African Americans are arrested more often and sentenced to harsher sanctions than whites • Asians are arrested less often than whites • what accounts for this disparity--racism or criminal activity?