All content tagged with: Slavery

Filter

  • Teaching Slavery in Commercial Law: The Simulation

    THIS SIMULATION IS REFERRED TO IN VOLUME 28, ISSUE 1, TEACHING SLAVERY IN COMMERCIAL LAW BY CARLISS N. CHATMAN. The Simulation: Syllabus: Slavery and Commercial Law At Washington and Lee Teacher’s Manual…

  • Teaching Slavery in Commercial Law

    Public status shapes private ordering. Personhood status, conferred or acknowledged by the state, determines whether one is a party to or the object of a contract. For much of our nation’s history, the law deemed all persons of African descent to have a limited status, if given personhood at all. The property and partial personhood status of African-Americans, combined with standards developed to facilitate the growth of the international commodities market for products including cotton, contributed to the current beliefs of business investors and even how communities of color are still governed and supported. The impact of that shift in status persists today. The commodities markets and the nations that rose and prospered would not be possible without the slave trade, and that trade would not be possible without the legal, business, and social norms in place to facilitate private ordering and growth while reinforcing the subjugation of African-Americans. Yet, many business and commercial law professors devote class time to teaching foundational and historical material, without any consideration of the impact of slavery. To avoid slavery in business and commercial law courses is to ignore an institution that plays a pivotal role in much of what we do today. Slavery is not a frolic, it is foundational. Many American universities played a role in the slave trade—either by receiving funds from the enterprise or receiving the enslaved as donations and using their labor or disposing of them for the financial advancement of the institution. In my Core Commercial Concepts course, a Uniform Commercial Code (UCC) survey class covering Articles 2, 3, 4, and 9, I devote time and space to discussions of race and the law by making the connection between the history of commercial concepts, slavery, and the role of the cotton industry in the shaping of international commercial law norms. In my simulation, described in this Essay, I teach the story of Washington and Lee University’s sale of individuals for the purpose of ensuring the institution’s financial survival, then extrapolate from the facts to review the high points of commercial law. I incorporate materials on the legacy of slavery at my own institution to provide students with a scenario based on the acquisition of real property and construction of buildings they engage with on campus. In this Essay I explain the methods I use to explore these concepts. Working in a framework that focuses on classification and status, my students consider issues of federalism and the impact of statutory definitions on private ordering, while discussing how these definitions shape the relationship of African-Americans to commerce.

  • Man’s Best Friend? How Dogs Have Been Used to Oppress African Americans

    The use of dogs as tools of oppression against African Americans has its roots in slavery and persists today in everyday life and police interactions. Due to such harmful practices, African Americans are not only disproportionately terrorized by officers with dogs, but they are also subject to instances of misplaced sympathy, illsuited laws, and social exclusion in their communities. Whether extreme and violent or subtle and pervasive, the use of dogs in oppressive acts is a critical layer of racial bias in the United States that has consistently built injustices that impede social and legal progress. By recognizing this pattern and committing to an intentional effort to end the devaluation of African Americans, the United States can begin to address the trailing pawprints of its racial inequities.

  • 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.

  • Distant Voices Then and Now: The Impact of Isolation on the Courtroom Narratives of Slave Ship Captives and Asylum Seekers

    Part I compares the nineteenth century cases of the Antelope and the Amistad to identify why they resulted in different outcomes despite having similar fact patterns. The Antelope concerned the fate of approximately 280 African captives discovered on a slave trade ship upon its interception by a U.S. revenue cutter. Since the slave trade in the United States was illegal at the time, the captives were transported to Savannah for trial through which their status—free or slave—would be determined. After a lengthy trial and appeals process in which Spain and Portugal laid claim to the captives, the Supreme Court determined that those captives claimed by a non-U.S. nation were slaves. The Court reasons that however “abhorrent” the slave trade was, the United States was obligated to recognize the rights of other nations to participate in it. In comparison, the Amistad concerned the fate of captives aboard a slave trade ship in which the captives committed mutiny, attempted to sail to Africa, but were captured by a U.S. vessel. The Supreme Court ordered them free despite the Spanish government’s claim that the captives were its property. Part I explores these different outcomes and argues that the absence of Antelope captives’ stories in the litigation process was partly due to the decision to isolate captives in slavery before their status was determined. In particular, it argues that this isolation affected the outcome of the Antelope by preventing captives from sharing their anecdotes and translating them to a format that would resonate with their legal counsel, the public, and judges. In contrast, the Amistad captives, while also detained, were situated close to those who could help them. They were able to transform their truths into a winning narrative for the court by understanding and leveraging the talents and expertise of counsel, and the biases of judges and the public. Part II argues that 200 years later, a similar environment of isolation suppresses the stories of another group with undetermined legal status: asylum seekers. Although slave ship captives were forced into the country with chains, while asylum seekers are driven into the country by fear, the legal status of both groups in their respective time periods was undetermined upon their arrival. Both groups deserved, by legal and moral standards, the opportunity to present the truth behind their arrival and to prove their legal status. Part II argues that the detention of asylum seekers mirrors the isolation of the Antelope captives by removing detainees from those most able to help them develop a persuasive narrative truth. Detention silences important voices, aggravates ineffective representation, damages public perception, and ultimately harms case outcomes.

  • Without Representation, No Taxation: Free Blacks, Taxes, and Tax Exemptions Between the Revolutionary and Civil Wars

    This Essay is the first general survey of the taxation of free Blacks in free and slave states between the Revolutionary and Civil Wars. A few states treated all equally for tax purposes, but most states enacted taxation systems that subjected free Blacks to different requirements. Both free and slave states viewed free Blacks as an undesirable population, and this Essay posits that—within the relevant political constraints—states used taxes and tax exemptions to dissuade free Black immigration and limit the opportunities for free Blacks within their borders. This topic is salient for at least two reasons. First, the Essay sheds light on laws and events that the literature—and the American educational system—has largely ignored. It directly contradicts the commonly held belief that free Blacks largely enjoyed the same set of rights and privileges as their White counterparts until Jim Crow and the Black Codes set in after the Civil War. Second, by juxtaposing then-widely prevailing views with historical tax laws, this Essay underscores the inherent relationship between tax policy and social policy. Taxes have never been just about bolstering the public fisc. Although this Essay will hopefully never have direct applicability to contemporary events, it can provide insight into current and future tax policies and the extent to which history, prejudice, and economic concerns inform policymakers’ decisions.

  • A Race or a Nation? Cherokee National Identity and the Status of Freedmen’s Descendants

    This Article examines the Cherokee Freedmen controversy to assess whether law and biology can function as sufficient models for crafting Cherokee identity at this crucial moment in the tribe's history. The author will argue that while law and biology are historically powerful frames for establishing tribal self-identity, they are inadequate to the task of determining who should enjoy national citizenship. The wise use of sovereignty, the author suggests, lies in creating a process of sustained dialogical engagement among all stakeholders in the definition of Cherokee citizenship on the question of Cherokee identity. This dialogue should ideally have been undertaken before the Nation moved to the political solution of a vote on tribal citizenship criteria. The exclusion of the Freedmen's descendants without such a dialogue may have high political and social costs to the Nation, its members, and its apparently former members. The dialogue this article proposes could be constructed along the lines suggested by sociologist Eva Garroutte, whose model of Radical Indigenism offers one means of considering these complex issues from within the Cherokee community itself.

  • The Plight of “Nappy-Headed” Indians: The Role of Tribal Sovereignty in the Systematic Discrimination Against Black Freedmen by the Federal Government and Native American Tribes

    This Note concerns the role the government has played in the exclusion of Black Freedmen from Native American nations through its implementation and interpretation of the doctrine of tribal sovereign immunity ("tribal sovereignty" or "tribal immunity"). Part I discusses the background of the Freedmen within the Five Civilized Tribes and provides an overview of the doctrine of tribal sovereign immunity, including its role in the controversy concerning the status of Black Indians. Part II discusses the interpretations given to the doctrine of tribal sovereign immunity by United States courts and executive agencies and the effects of those interpretations on relations between Native Americans and Freedmen. Part III discusses the roles that Congress, executive agencies, and the courts must take to halt and reverse the discriminatory practices that have stripped Freedmen of their rights and privileges as members of Native American communities.