Law, Justice, and Society:
A Sociolegal Introduction
Chapter 13
Racial Minorities and the Law
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
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
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
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
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
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
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
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
Racial Minorities and the Law
African Americans (cont.)
“We Shall Overcome”
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World War II was the end of Jim Crow
Fair Employment Practices Committee
Commission on Higher Education
Smith v. Allwright, 1944
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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
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)
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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)
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
Racial Minorities and the Law
African Americans (cont.)
How Far Have We Come?
• either a “rousing success” or a “long way to go”
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
Racial Minorities and the Law
American Indians (cont.)
Early Years (cont.)
• Constitution granted quasi-independence to
Indians
• Treaty of Fort Pit recognized their sovereignty
Racial Minorities and the Law
American Indians (cont.)
Marshall Trilogy
• Johnson v. McIntosh, 1823
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Discovery Doctrine
Nations that discovered land had ultimate title, so Indians could not sell to private citizens
• Cherokee Nation v. Georgia, 1831
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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
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
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
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
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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
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Gave federal government jurisdiction over seven crimes
upheld in United States v. Kagama (1886)
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
Racial Minorities and the Law
American Indians (cont.)
The Beginning of the End
• Indian Citizenship Act of 1924
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Indian Reorganization Act of 1934
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Ended practice of cultural genocide
Return to tribal governance (overturned Dawes)
Retrieve their language, religions, and customs
Termination policy in 1953 (assimilate mainstream)
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Gave all Indians American citizenship
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
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Increasing Indian militancy lead to end of termination policy
Alcatraz, occupation of BIA headquarters, Wounded Knee
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 nonIndians in Indian lands
– Only real exceptions to recent favorable rulings
Racial Minorities and the Law
Asian Americans
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•
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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)
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Ozawa v. United States, 1922
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Asians born in the U.S. could become citizens
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"
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?