Law, Justice, and Society:A Sociolegal Introduction

Chapter 13Racial Minorities and the Law

Racial Minorities and the Law

Slavery Not in Constitution • Constitution and Declaration of

Independence contain language that appears to outlaw slavery

• Somerset v. Stewart• Constitution has language supportive of

slavery• Article I, sections 9 and 2; Article IV, section

2

African Americans

Racial Minorities and the Law

• 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

African Americans (cont.)

Racial Minorities and the Law

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

African Americans (cont.)

Racial Minorities and the Law

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

African Americans (cont.)

Racial Minorities and the Law

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

African Americans (cont.)

Racial Minorities and the Law

Jim Crow laws• resulted in stripping away of integration • Plessy v. Ferguson, 1898

– separate but equal doctrine

• William v. Mississippi, 1898– upheld disenfranchisement

African Americans (cont.)

Racial Minorities and the Law

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

African Americans (cont.)

Racial Minorities and the Law

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

African Americans (cont.)

Racial Minorities and the Law

“We Shall Overcome”• World War II was the end of Jim Crow• Fair Employment Practices Committee• Commission on Higher Education• Smith v. Allwright, 1944• paved the way for Brown v. Board of

Education, 1954

African Americans (cont.)

Racial Minorities and the Law

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)

• Voting Rights Act was upheld in South Carolina v. Katzenbach (1966)

African Americans (cont.)

Racial Minorities and the Law

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

African Americans (cont.)

Racial Minorities and the Law

How Far Have We Come?• either a “rousing success” or a “long

way to go”

African Americans (cont.)

Racial Minorities and the Law

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• Continental Congress "protected" them

under the Northwest Ordinance

American Indians

Racial Minorities and the Law

Early Years (cont.)• Constitution granted quasi-

independence to Indians • Treaty of Fort Pit recognized their

sovereignty

American Indians (cont.)

Racial Minorities and the Law

Marshall Trilogy• Johnson v. McIntosh, 1823

– Discovery Doctrine

• Cherokee Nation v. Georgia, 1831– domestic dependent nation

• Worcester v. Georgia, 1832– federal government (not the states) had

authority over Indian affairs

American Indians (cont.)

Racial Minorities and the Law

Period of Removal• Indian Removal Act• Dakota Sioux and Oklahoma• Standing Bear v. Crook, 1879

– Indians are people

American Indians (cont.)

Racial Minorities and the Law

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

American Indians (cont.)

Racial Minorities and the Law

Assimilation and Cultural Genocide (cont.)• termination of treaty making and

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) • Major Crimes Act of 1885

– upheld in United States v. Kagama (1886)

American Indians (cont.)

Racial Minorities and the Law

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– Lone Wolf v. Hitchcock, 1903

American Indians (cont.)

Racial Minorities and the Law

The Beginning of the End• Indian Citizenship Act of 1924• Indian Reorganization Act of 1934• termination policy in 1953

– devastated tribal welfare and independence

• Indian Self-Determination Act of 1975

American Indians (cont.)

Racial Minorities and the Law

How Far Have We Come?• recompense and United States v. Sioux

Nations, 1980• Oliphant v. Suquamish, 1978• Nevada v. Hicks, 2001

American Indians (cont.)

Racial Minorities and the Law

• Chinese Exclusion Act of 1882– passed despite unconstitutionality of similar

legislation passed in regards to Europeans

• In Re Ah Yup, 1878, versus United States v. Wong Kim Ark, 1898, versus Ozawa v. United States, 1922

• Executive Order 9066– Korematsu v. United States, 1944– Ex Parte Endo, 1944

• from "yellow peril" to "model minority"

Asian Americans

Racial Minorities and the Law

• 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?

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