Legal History Commons^™

Federal Indian Law As Method, Matthew L. M. Fletcher

Articles

Morton v. Mancari is well-known in Indian law circles as a foundation for the tribal self-determination era, which is generally understood to have begun in the late 1960s and early 1970s. The case involved an Act of Congress that required the federal “Indian Office” (now called the Bureau of Indian Affairs) to grant preference in employment to “Indians.” The case is typically understood as the basis for analyzing how federal statutes that apply exclusively to Indian people do not implicate the anti-discrimination principles of the United States Constitution. This understanding of the case, while correct, is too narrow.

The Past As A Colonialist Resource, Deepa Das Acevedo

Faculty Articles

Originalism’s critics have failed to block its rise. For many jurists and legal scholars, the question is no longer whether to espouse originalism but how to espouse it. This Article argues that critics have ceded too much ground by focusing on discrediting originalism as either bad history or shoddy linguistics. To disrupt the cycle of endless “methodological” refinements and effectively address originalism’s continued popularity, critics must do two things: identify a better disciplinary analogue for originalist interpretation and advance an argument that moves beyond methods.

Anthropology can assist with both tasks. Both anthropological analysis and originalist interpretation are premised on …

The Fall And Rise Of Bengali Muslim Conciousness: Conceptualising The Identity Of The Bangla Universal, Habib Khan

Theses and Dissertations

The emergence of modern-nation states saw the end of the empirical era of exploitation and exercise of inherent racist tendencies towards the 'other'. However, the effect of that colonial system is still ever-present in the creation and governance of these newly independent states. While every new state aims to be 'modern', they adopt the international legal framework of the West as their own - a system they had initially wanted to escape. The concept of Muslim universality in the form of the ummah should have freed Pakistan from the shackles of its former colonial masters. Instead, this phenomenon was replaced …

Ella P. Stewart And The Benefits Of Owning A Neighborhood Pharmacy, Randall K. Johnson

Faculty Works

This Essay is the first to explain how and why Ella P. Stewart, who was among the first Black women to earn a doctoral degree in Pharmacy, used her status as a small business owner to protect the limited set of legal rights that were available to African-Americans in the twentieth century. It also describes how Stewart’s early personal and professional experiences informed her subsequent public service career. Additionally, this Essay highlights the various ways that Stewart expanded the real freedoms that Black Americans enjoyed by guaranteeing they received a fair share of public goods or services. It concludes by …

Sexual Profiling & Blaqueer Furtivity: Blaqueers On The Run, T. Anansi Wilson

The Scholar: St. Mary's Law Review on Race and Social Justice

This article has taken some time to recollect. I have been struggling to find the grammar to communicate a phenomenon that is both central to BlaQueer life and beyond BlaQueer living. This difficulty, the silences, the gaps, the nonsensical and agrammatical nature of this phenomena—that of BlaQueer furtivity, the strict scrutiny of Black life and sexual profiling—are central features not only of this project but of the legal, extralegal and social logics and powers that mark, make and remake BlaQueer folks as always, already furtive, subject to strict scrutiny and necessarily sexual profiling. I have been struggling with whether to …

A Reader’S Guide To Legal Orientalism, Teemu Ruskola

All Faculty Scholarship

My book Legal Orientalism: China, the United States, and Modern Law (Harvard University Press 2013) was published in translation in China in 2016. This essay analyzes the Chinese reception of this book. Originally addressed to a North American readership, Legal Orientalism examines critically the asymmetric relationship in which Euro-American law and Chinese law stand to one another, the former regarding itself as an embodiment of universal values while viewing the latter’s as culturally particular ones. The essay explores what happens when a “Western” work of self-criticism is transmitted to an “Eastern” audience. In this context, it analyzes the politics of …

The War On Drugs And Its Legal Effects On Black Americans, Alexia L. Howard-Mullins

2022 Symposium

The differences in treatment between Black and white Americans in the past fifty years has been a topic of thought in the minds of political and sociological scholars since the inception of the War on Drugs in 1971. These differences in treatment may lead to discrimination legally, resulting in longer prison sentences and a higher proportion of Black Americans in prison. This study analyzes the results of the War on Drugs that led to disproportionate imprisonment of Black Americans, including mandatory sentencing laws, drug classifications, and discrimination within law enforcement and the legal system. This study will use primary sources …

Johnson V. M'Intosh: Christianity, Genocide, And The Dispossession Of Indigenous Peoples, Cynthia J. Boshell

Cal Poly Humboldt theses and projects

Using hermeneutical methodology, this paper examines some of the legal fictions that form the foundation of Federal Indian Law. The text of the U.S. Supreme Court’s 1823 Johnson v. M’Intosh opinion is evaluated through the lens of the Convention on the Prevention and Punishment of the Crime of Genocide to determine the extent to which the Supreme Court incorporated genocidal principles into United States common law. The genealogy of M’Intosh is examined to identify influences that are not fully apparent on the face of the case. International jurisprudential interpretations of the legal definition of genocide are summarized and used as …

A Workers' Paradise: Re-Integrating Newfoundland Into Colonial American History, Elena Hynes

Electronic Theses & Dissertations

The island of Newfoundland is conspicuous in colonial British and North American histories, most particularly and paradoxically, in its absence, a state of affairs which this study aims to help address. Multiple factors, including a paucity of documentary sources and various historiographic trends, have traditionally contributed to Newfoundland’s marginalization within colonial historical narratives. However, developments in recent years have made Newfoundland’s potential integration into the broader colonial dialogue more feasible including the advent of the Atlantic perspective, the expansion of available sources, and the work of multiple regional historians who have challenged enduring historiographic trends characterizing Newfoundland colonial settlements as …

An Uncomfortable Truth: Indigenous Communities And Law In New England: Roger Williams University Law Review Symposium 10/22/2021, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

We Have The Land Titles: Indigenous Litigants And Privatization Of Resguardos In Colombia, 1870s-1940s, Gloria Lopera

FIU Electronic Theses and Dissertations

Pressures for the privatization of indigenous lands accompanied the making of nation-states in post-colonial Latin America and boosted the natives' quest for colonial legal documents suitable to prove their rights over indigenous communal landholdings (known in Colombia as "resguardos"). This dissertation compares the experiences of two communities - San Lorenzo and Cañamomo-Lomaprieta - engaging with the law and producing legal and historical evidence to respond to the privatization of their resguardos. These communities inhabit the municipalities of Riosucio and Supía (Caldas) in the Western Colombian Andes. While the study explores the genesis of San Lorenzo's and Cañamomo-Lomaprieta's …

The Ill-Treatment Of Their Countrywoman: Liberated African Women, Violence, And Power In Tortola, 1807–1834, Arianna Browne

Master's Theses

In 1807, Parliament passed an Act to abolish the slave trade, leading to the Royal Navy’s campaign of policing international waters and seizing ships suspected of illegal trading. As the Royal Navy captured slave ships as prizes of war and condemned enslaved Africans to Vice-Admiralty courts, formerly enslaved Africans became “captured negroes” or “liberated Africans,” making the subjects in the British colonies. This work, which takes a microhistorical approach to investigate the everyday experiences of liberated Africans in Tortola during the early nineteenth century, focuses on the violent conditions of liberated African women, demonstrating that abolition consisted of violent contradictions …

Out Of Sight, Out Of Mind: Analyzing Inhumane Practices In Mississippi’S Correctional Institutions Due To Overcrowding, Understaffing, And Diminished Funding, Ariel A. Williams

Honors Theses

The purpose of this research is to examine the political, social, and economic factors which have led to inhumane conditions in Mississippi’s correctional facilities. Several methods were employed, including a comparison of the historical and current methods of funding, staffing, and rehabilitating prisoners based on literature reviews. State-sponsored reports from various departments and the legislature were analyzed to provide insight into budgetary restrictions and political will to allocate funds. Statistical surveys and data were reviewed to determine how overcrowding and understaffing negatively affect administrative capacity and prisoners’ mental and physical well-being. Ultimately, it may be concluded that Mississippi has high …

"They Would Do As They Pleased, As They Had The Power": Gender Violence And The American Settler-Colonial Project, 1830-1890, Noelle Iati

Women's History Theses

This thesis investigates the role of gender violence and sexual terror in westward settler expansion of the United States in the nineteenth century. I posit that gender violence was not simply a symptom of war and colonization, but an integral piece of the American colonization strategy. Using studies of three locations during three different periods, I have found that the local, territorial, state, and federal governments all actively deployed sexual assault and other forms of gendered terror as methods of removing Indigenous peoples to reservations and rancherías, opening their lands to settlement and resource exploitation for the purpose of acquiring …

Slavery And The Postbellum University: The Case Of Smu, Lolita Buckner Inniss, Skyler Arbuckle

Publications

People who practiced slavery across the United States, or engaged in slavery-related practices, were often the same civically-minded social, legal, and economic leaders who founded the nation’s first colleges and universities. There was, thus, from our earliest times, an unacknowledged but firm tie between the values and high ideals of the academy that existed in stark contraposition to the horrors of human bondage that fueled those institutions. Many North American colleges founded before the Civil War relied on money derived from the elite members of society with direct involvements in slavery. While a growing body of scholarly work discusses early …

The Munemitsu Legacy: The Japanese American Family Behind Mendez V. Westminster: California’S First Successful Desegregation Case, Annie Tang

Library Articles and Research

"Many Orange County, California schoolchildren know the name 'Mendez.' After all, the iconic name is front and center of the landmark civil rights case that desegregated several of the county’s public schools in 1947, preceding the 1954 Brown v. Board case on a national level. The Mendez family, one of five Latino families which challenged several school districts in the county on their practice of Mexican-only schools, had their name immortalized in history. But the Mendezes would not have been able to lead the legal charge if it was not for another family of color, the Munemitsus, the Japanese American …

Reevaluating Politicized Identity & Notions Of An American Political Community In The Legal & Political Process, Marvin L. Astrada Jd, Phd

Indiana Journal of Law and Social Equality

No abstract provided.

Handcuffing The Vote: Diluting Minority Voting Power Through Prison Gerrymandering And Felon Disenfranchisement, Rebecca Harrison Stevens, Meagan Taylor Harding, Joaquin Gonzalez, Emily Eby

The Scholar: St. Mary's Law Review on Race and Social Justice

For the purposes of legislative redistricting, Texas counts prison populations at the address of the prison in which they are incarcerated at the time of the census, rather than their home prior to incarceration—regardless of whether the prisoners themselves maintain a residence in their home communities and intend to return home after incarceration. This deprives those home communities of full representation in the redistricting process. Combined with Texas’s felon disenfranchisement laws, this also results in arbitrarily bolstering the representational power of some Texans on the backs of other Texans who themselves are unable to vote. All of this takes place …

Challenging Voting Rights And Political Participation In State Courts, Irving Joyner

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Still Writing At The Master’S Table: Decolonizing Rhetoric In Legal Writing For A “Woke” Legal Academy, Teri A. Mcmurtry-Chubb

The Scholar: St. Mary's Law Review on Race and Social Justice

When the author wrote Writing At the Master’s Table: Reflections on Theft, Criminality, and Otherness in the Legal Writing Profession almost 10 years ago, her aim was to bring a Critical Race Theory/Feminism (CRTF) analysis to scholarship about the marginalization of White women law professors of legal writing. She focused on the convergence of race, gender, and status to highlight the distinct inequities women of color face in entering their ranks. The author's concern was that barriers to entry for women of color made it less likely that the existing legal writing professorate, predominantly White and female, would problematize the …

Latino Education In Texas: A History Of Systematic Recycling Discrimination, Albert H. Kauffman

St. Mary's Law Journal

Abstract forthcoming

Texas Indian Holocaust And Survival: Mcallen Grace Brethren Church V. Salazar, Milo Colton

The Scholar: St. Mary's Law Review on Race and Social Justice

When the first Europeans entered the land that would one day be called Texas, they found a place that contained more Indian tribes than any other would-be American state at the time. At the turn of the twentieth century, the federal government documented that American Indians in Texas were nearly extinct, decreasing in number from 708 people in 1890 to 470 in 1900. A century later, the U.S. census recorded an explosion in the American Indian population living in Texas at 215,599 people. By 2010, that population jumped to 315,264 people.

Part One of this Article chronicles the forces contributing …

'Race, Racism, And American Law': A Seminar From The Indigenous, Black, And Immigrant Legal Perspectives, Eduardo R.C. Capulong, Andrew King-Ries, Monte Mills

The Scholar: St. Mary's Law Review on Race and Social Justice

Flagrant racism has characterized the Trump era from the onset. Beginning with the 2016 presidential campaign, Trump has inflamed long-festering racial wounds and unleashed White supremacist reaction to the nation’s first Black President, in the process destabilizing our sense of the nation’s racial progress and upending core principles of legality, equality, and justice. As law professors, we sought to rise to these challenges and prepare the next generation of lawyers to succeed in a different and more polarized future. Our shared commitment resulted in a new course, “Race, Racism, and American Law,” in which we sought to explore the roots …

Antiquities Theft: The Role Of The Museum In Modern Symbolic Violence, Meredith M. Amato

Student Publications

Humans have been collecting artifacts for centuries, whether it is for their aesthetic value or for the acquisition of knowledge. However, these artifacts have, in most cases, been taken without permission from the countries of origin. Today, museums are struggling with the issue of repatriation and many refuse to return their priceless possessions. Western museums and their supporters are arguing that repatriation will put the artifacts in danger and hurt the chances for humanity to learn from them. The arguments of these museums are an attempt of symbolic violence on non-Western nations, who are seen as unfit or unable to …

Defining Authentic: The Relationship Between Native Art And Federal Indian Policy, 1879-1961, Aurora Kenworthy

Honors Theses

Between 1879 and 1961, non-Native perceptions of what constituted authentic Native art shifted. These changing perceptions were influenced by, and then in turn influenced, federal policy and legislation. While non-Native individuals and groups worked to improve conditions for Native communities and to protect “authentic” Native art forms, Native reformers also attempted to enact change to help Native communities and Native artists exercised control over their own art and identity.

Foreword: Abolition Constitutionalism, Dorothy E. Roberts

All Faculty Scholarship

In this Foreword, I make the case for an abolition constitutionalism that attends to the theorizing of prison abolitionists. In Part I, I provide a summary of prison abolition theory and highlight its foundational tenets that engage with the institution of slavery and its eradication. I discuss how abolition theorists view the current prison industrial complex as originating in, though distinct from, racialized chattel slavery and the racial capitalist regime that relied on and sustained it, and their movement as completing the “unfinished liberation” sought by slavery abolitionists in the past. Part II considers whether the U.S. Constitution is an …

Douglass’ Reply To A. C. C. Thompson’S ‘Letter From Frederick Douglass,’ As Reprinted In The Anti-Slavery Bugle: A Critical Edition Of Both Letters, With A Summary Of Maryland’S Fugitive Slave Laws, Kayla Hardy-Butler

Nineteenth-Century Ohio Literature

Kayla Hardy-Butler presents a famous letter by Frederick Douglass, as it was published in Ohio, with the letter that prompted it. This edition also includes a summary of Maryland slave statutes from the time to better explain the day-to-day experience of slavery debated in this correspondence.

Colonial Control And Power Through The Law: Territoriality, Sovereignty, And Violence In German South-West Africa, Caleb Joseph Cumberland

Senior Projects Spring 2018

Senior Project submitted to The Division of Social Studies of Bard College

The Loving Story: Using A Documentary To Reconsider The Status Of An Iconic Interracial Married Couple, Regina Austin

All Faculty Scholarship

The Loving Story (Augusta Films 2011), directed by Nancy Buirski, tells the backstory of the groundbreaking U.S. Supreme Court case, Loving v. Virginia, that overturned state laws barring interracial marriage. The article looks to the documentary to explain why the Lovings should be considered icons of racial and ethnic civil rights, however much they might be associated with marriage equality today. The film shows the Lovings to be ordinary people who took their nearly decade long struggle against white supremacy to the nation’s highest court out of a genuine commitment to each other and a determination to live in …

Inseparable: Perspective Of Senator Daniel Webster, Ernest M. Oleksy

The Downtown Review

Considering the hypersensitivity that their nation has towards race relations, it is often ineffable to contemporary Americans as to how anyone could have argued against abolition in the 19th century. However, by taking the perspective of Senator Daniel Webster speaking to an audience of disunionist-abolitionists, proslaveryites, and various shades of moderates, numerous points of contention will be brought to light as to why chattel slavery persisted so long in the U.S. Focal points of dialogue will include the Narrative of Frederick Douglass, the "positive good" claims of Senator John C. Calhoun, the disunionism of William Lloyd Garrison, and the defense …