All content categorized with: Historical Reckoning

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  • The Enemy is the Knife: Native Americans, Medical Genocide, and the Prohibition of Nonconsensual Sterilizations

    This Article describes the legal history of how, twenty years after the sterilizations began, the U.S. Department of Health, Education, and Welfare, in 1978, finally created regulations that prohibited the sterilizations. It tells the heroic story of Connie Redbird Uri, a Native American physician and lawyer, who discovered the secret program of government sterilizations, and created a movement that pressured the government to codify provisions that ended the program. It discusses the shocking revelation by several Tribal Nations that doctors at the IHS hospitals had sterilized at least 25 percent of Native American women of childbearing age around the country. Most of the women were sterilized without their knowledge or without giving valid consent. It explains the obstacles that Connie Redbird Uri and other Native activists faced when confronting the sterilizations, including the widespread acceptance of eugenic sterilizations, federal legislation that gave doctors economic incentives to perform the procedures, and paternalistic views about the reproductive choices of women, and especially women of color. Finally, this Article describes the long-lasting impacts of the federally-sponsored sterilization of Native women. The sterilizations devastated many women, reduced tribal populations, and terminated the bloodlines of some Tribal Nations.

  • Law in the Shadows of Confederate Monuments

    Hundreds of Confederate monuments stand across the United States. In recent years, leading historians have come forward to clarify that these statues were erected not just as memorials but to express white supremacist intimidation in times of racially oppressive conduct. As public support for antiracist action grows, many communities are inclined to remove public symbols that cause emotional harm, create constant security risks and dishonor the values of equality and unity. Finding a lawful path to removal is not always clear and easy. The political power brokers who choose whether monuments will stay or go often do not walk daily in their shadows. In recent years, eight Southern state legislatures enacted monument preservation legislation designed to thwart local removal efforts. These laws have prompted bitter conflicts, sometimes leading angry citizens to topple massive stone or bronze monuments themselves. The challenges present fertile ground for innovative lawyering. Creative applications of state property, nuisance and contract laws have led to removals notwithstanding the prohibitions of state preservation laws. When state law blocks removal or contextualization, communities may look to federal law as a source for taking antiracist action. First Amendment doctrine governing expressive speech has not provided a fruitful solution. Despite the expressive nature of Confederate monuments, efforts to weaponize the First Amendment by both sides of the monument debate have failed, largely due to the government speech doctrine. Given the age and quality of most monuments, copyright law is also not likely to provide an effective federal claim. The Federal Civil Rights Act offers an untapped but promising foundation for resolving these controversies. Title VI and Title VII could be used to challenge monuments that contribute to a hostile work or educational environment. Federal civil rights claims would supersede state legislation enacted to prevent removal of racially hostile symbols. Even when state law does not present removal barriers, communities who seek to take meaningful anti-racist action could ground their initiatives in the Civil Rights Act’s core value of equality. For all who are confronting this issue, this Article seeks to provide a legal and strategic framework for acknowledging history while reclaiming the symbolic heart of our public spaces and a means to assure that the symbols we elevate affirm shared contemporary values.

  • “We Are Asking Why You Treat Us This Way. Is It Because We Are Negroes?” A Reparations-Based Approach to Remedying the Trump Administration’s Cancellation of TPS Protections for Haitians

    This Article places the Trump Administration’s decision to cancel TPS for Haitians within the longer history of U.S. racism and exclusion against Haiti and Haitians, observes the legal challenges against this decision and their limitations, and imagines a future that repairs the harms caused by past and current racist policies. First, this Article briefly outlines the history of exclusionary, race-based immigration laws in the United States, and specifically how this legal framework, coupled with existing anti-Black ideologies in the United States, directly impacted Haitians and Haitian immigrants arriving in the United States. Next, the Article provides an overview of the TPS decision-making process, the Trump Administration’s openly racist comments against Haitians and other people of color before and during the decision-making process to cancel TPS, and the departure from the established administrative process for TPS cancellation. The Article then reviews the legal challenges against TPS cancellation and the arguments that the decision violated the Equal Protection Clause and how such efforts reveal the limitations of litigation as a tool to achieve social justice. Looking towards the future, this Article discusses reparations and remittances as creative ways to repair some of the damage wrought by the United States’ history of racial discrimination in immigration and foreign policy against Haitians. Specifically, this Article explores three solutions: (1) recognizing the harms caused specifically to Haitians by the United States’ exclusionary foreign affairs and immigration policies; (2) using material and non-material forms of reparations, including extending TPS, offering a pathway for citizenship for TPS holders, or offering Haitian TPS recipients benefits to public programs; and (3) valuing the role remittances play in affirming Haitians’ autonomy and working towards eroding decades of imperialistic treatment of Haitians.

  • Excerpt of Law and Anti-Blackness

    Professor Michele Goodwin’s essay here (and the article from which it came, to be published in full in our Winter issue) explicitly identifies the development of American law as a project of cementing racial caste. This piece is a call for conversation and asks us all to consider: “How has the failure to acknowledge and address the carnage and prurience of America’s racial origin story impacted life today?” For 26 volumes, we have attempted to answer that question. In publishing this story in this issue, we are excited to be joined by our peers in that effort.

  • Law and Anti-Blackness

    This Article addresses a thin slice of the American stain. Its value derives from the conversation it attempts to foster related to reckoning, reconciliation, and redemption. As the 1930s Federal Writers’ Project attempted to illuminate and make sense of slavery through its Born in Slavery: Slave Narratives From 1936-1938, so too this project seeks to uncover and name law’s role in fomenting racial division and caste. Part I turns to pathos and hate, creating race and otherness through legislating reproduction— literal and figurative. Part II turns to the Thirteenth Amendment. It argues that the preservation of slavery endured through its transformation. That the amendment makes no room for equality further establishes the racial caste system. Part III then examines the making of racial division and caste through state legislation and local ordinances, exposing the sophistry of separate but equal. Part IV turns to the effects of these laws and how they shaped cultural norms. As demonstrated in Parts I-IV, the racial divide and caste system traumatizes its victims, while also undermining the promise of constitutional equality, civil liberties, and civil rights.

  • When Critical Race Theory Enters the Law & Technology Frame

    Michigan Technology Law Review is proud to partner with our peers to publish this essay by Professor Jessica Eaglin on the intertwining social construction of race, law and technology. This piece highlights how the approach to use technology as precise tools for criminal administration or objective solutions to societal issues often fails to consider how laws and technologies are created in our racialized society. If we do not consider how race and technology are co-productive, we will fail to reach substantive justice and instead reinforce existing racial hierarchies legitimated by laws.

  • Medical Violence, Obstetric Racism, and the Limits of Informed Consent for Black Women

    This Essay critically examines how medicine actively engages in the reproductive subordination of Black women. In obstetrics, particularly, Black women must contend with both gender and race subordination. Early American gynecology treated Black women as expendable clinical material for its institutional needs. This medical violence was animated by biological racism and the legal and economic exigencies of the antebellum era. Medical racism continues to animate Black women’s navigation of and their dehumanization within obstetrics. Today, the racial disparities in cesarean sections illustrate that Black women are simultaneously overmedicalized and medically neglected—an extension of historical medical practices rooted in the logic of biological race. Though the principle of informed consent traditionally protects the rights of autonomy, bodily integrity, and well-being, medicine nevertheless routinely subjects Black women to medically unnecessary procedures. This Essay adopts the framework of obstetric racism to analyze Black women’s overmedicalization as a site of reproductive subordination. It thus offers a critical interdisciplinary and intersectional lens to broader conversations on race in reproduction and maternal health.

  • Origin Stories: Critical Race Theory Encounters the War on Terror

    Stories matter. They matter to those intent on maintaining structures of power and privilege, and to those being crushed by those structures. In the United States, the space to tell, and to hear, our stories has been expanding. This means that the histories and lived realities of those who have been excluded, particularly people of color, are seeping into mainstream discourse, into the books our children read, the movies and television shows they watch, and the many websites comprising social media. Critical race theory has played a role in this expansion. It insists that we recognize the legitimacy of the stories of those deemed “Other” because they have been erased or distorted beyond recognition in the dominant narrative. 3 Critical race theory has helped ensure that the legacies of genocide and broken treaties, of the cruelties imposed upon enslaved persons, of the forced inclusion and exclusion of those regarded simply as disposable labor, have worked their way into the realm of what can be talked about. Critical race scholars have exposed immigration injustices and called out xenophobia and Islamophobia. All this discomfits those who benefit, or believe they benefit, from the status quo.

  • Symbolism and the Thirteenth Amendment: The Injury of Exposure to Governmentally Endorsed Symbols of Racial Superiority

    One of the debates often encountered by native southerners centers around our historical symbols. There are heated opinions on both sides of the issue as to what these symbols mean and whether they should be allowed to be displayed. The latter question has begun making its way into the courts, with many southern symbols and memorials being accused of promoting the philosophy of racial supremacy. Despite the growing public concern, modern courts refuse to rule on the question. They claim they are forestalled by Article III’s standing requirement that plaintiffs must have suffered a concrete injury in fact. They state that merely asserting offense at a message does not meet this requirement, even if the message is offered by the Government. In this article, I show that holding to be incorrect. The Constitution provides certain absolute rights that the government may not infringe upon. One of those rights is the right to be free from slavery, which the courts have expanded to include all of its badges and incidents. Though courts have gone back and forth on what constitutes a badge of slavery, a historical look at the Thirteenth Amendment shows that amongst the things the drafters intended the definition to include was the philosophical message of racial supremacy if it is communicated by the government. In my article, I demonstrate that the scope of the Thirteenth Amendment includes a ban on the governmental endorsement of racial supremacy, including endorsements made in the form of symbols. I show that mere exposure to such a message is the unique form of injury that a violation of that right creates and, as such, is a concrete harm on which Article III standing can be based. Finally, I provide a workable test for determining whether a particular exposure to a symbol of racial superiority possesses all the elements necessary to constitute an injury in fact for the purposes of standing.
    • Article
    • Slavery
    • By William A. Engelhart
    • Volume 25, Issue 1
    • January, 2020

    Equality at the Cemetery Gates: Study of an African American Burial Ground

    In Charlottesville, Virginia, the University Cemetery serves as the final resting place of many of the most prominent community members of the University of Virginia. In 2011, the University planned an expansion. During archaeological research to this end, sixty-seven previously unidentified interments, in both adult and child-sized grave shafts, were discovered on the proposed site of expansion, to the northeast of the University Cemetery. Further archival research revealed that “at least two late nineteenth century references note that enslaved African Americans were buried north of but outside the enclosed University, in an adjacent wooded area.” In one, Col. Charles Christian Wertenbaker recalls: “in old times, the University servants were buried on the north side of the cemetery, just outside of the wall.” Current research suggests that at least as late as 1898 the area of land was recognized as historically utilized by the University of Virginia for “servant” burials. Since these discoveries, a commemoration ceremony has been held. Some beautification measures have been undertaken: a specially designed fence has been installed; some trees have been planted; and at both entrances an informational sign is posted explaining the significance of the plot. Still, this newly rediscovered sacred space stands in stark contrast to the marble tombs and gilded cenotaphs of the University Cemetery and adjacent Confederate monument. Typically, descendants of the dead reserve rights in a cemetery in the form of some kind of property interest. Mourners and the children of mourners may return from time to time to pay their respects and tend to the graves of their dearly departed. In general, this is a well-established right (though further investigation will reveal that it somewhat less clear than one might expect). However, slavery in America has frustrated many rights, and its long shadow continues to disrupt others. Because of the nature of this property interest, today in Charlottesville, the cemetery rights of the descendants of those slaves interred to the northeast of the University Cemetery are arguably extinguished, or at best unclear. The owner of the cemetery, the University of Virginia, has made no attempt to exclude or to sell the land, nor likely would they, but it is unclear that they could not should they so desire. There are likely other slave cemeteries, on public and private land, that find themselves in a similar situation: specifically, slave cemeteries and African American burial grounds that, because of systemic oppression and discrimination, are rendered unprotected and abandoned—descendants’ rights vanished into nothing. In exploration of this problem, this paper lays out the historical legal landscape of cemeteries, the special issues that arise in slave cemeteries generally, and the application of these doctrines to the African American burial ground in Charlottesville. Additionally, it presents a suggested legal treatment of this special type of property interest: namely, that there should be legislative reform that, in the case of abandoned slave cemeteries, creates both a public easement allowing access and broad statutory standing so that communities can work together to maintain these sacred sites and police against desecration. Further, the development of the rights of sepulture in American common law and the accompanying legal solicitude would allow judges to read this regime into existence, even in absence of formal legislative measures.