Brenda D. Gibson

Volume 26.2 (download PDF)

Abstract

This article enters the conversation about Black poverty in a new way—discussing the phenomenon of the heirs’ property ownership model as an impediment to Black wealth. Though heirs’ property seems a rather innocuous concept in property law, juxtaposed with the history of Black people in the United States, particularly through the lens of the South Carolina Low Country and American systems that have birthed and nurtured incalculable inequities for us, it becomes clear that heirs’ property ownership is much more. It is both cause and effect: cause as it was birthed out of America’s racial caste system; and effect in that it has led to continued Black land loss, which ultimately threatens the culture of America’s slave descendants.

The article begins with an overview of property law’s Estates Systems, discussing the rather antiquated manner in which property rights are enjoyed in America, generally, before moving to the history of Black property ownership in America. This discussion necessarily begins with slavery, a dark but relevant period in this country’s history, as it informs the way Black people, specifically those in the South Carolina Low Country, enculturated themselves and exist to this day. In Part II, the article unpacks the systemic manner in which American institutions have coalesced to impede Black wealth and explains why the loss of Black land and the consequent wealth gap persists in America today. Particularly, Part II discusses the loss of Black-owned land in the Low Country and the threatened loss of a unique Gullah-Geechee culture that exists there. Finally, Part III of the article, considers several solutions to the prolific loss of Black land and the resulting impediment to Black wealth.

Erin Daly, Paul Stanley Holdorf, Kelly Harnett, Jane Doe, and Domonique Grimes

Volume 26.2 (download PDF)

Abstract

Staff sexual abuse is rampant throughout the American prison system. This is true despite a federal law—the aspirationally titled Prison Rape Elimination Act (“PREA”)—that has been in place for 20 years and despite the rare conviction of prison officials who are found guilty of rape or sexual abuse of people who are incarcerated. Sexual contact between prison staff and incarcerated people is by definition illegal because the power imbalance between people in custody and those who are under their control makes consent impossible as a matter of law. Staff-on-prisoner sexual abuse takes many forms, including sexual humiliation, sexually degrading language and threats, and various forms of rape. The harm of sexual violence in prison is commonly compounded by violations of privacy and by retaliation against those who speak out. To better understand the pervasiveness and profound harms of staff-on-prisoner sexual abuse, this article—co-written by two survivors who were also jailhouse lawyers—examines the harms and demonstrates the inadequacy of the current legal regime to protect women who are incarcerated. It then proposes that understanding prison sexual abuse as a violation of women’s inherent human dignity and applying the law of dignity rights to cases of staff-on-prisoner sexual abuse would better protect women who are vulnerable to abuse inside and help to end the culture of sexual abuse that pervades American prisons and jails.

Elizabeth Butterworth

Volume 26.2 (download PDF)

Abstract

In Care Work: Dreaming Disability Justice, Leah L. Piepzna-Samarasinha asks a series of questions to illustrate how disability rights law fails to address the needs of those who experience multiple systems of oppression, including: “What if you’re disabled and undocumented?” This article draws on research from across disciplines, with a focus on personal narratives, to reflect on and respond to Piepzna-Samarashinha’s question, specifically with regard to the experience of immigrants who are disabled, undocumented, and Latinx. As such, it centers disability justice analyses and describes how ableism and white nationalism are mutually reinforcing bedrocks of immigration law, and how the immigration system interacts with disability law to restrict disabled and undocumented Latinx immigrants from accessing services and exercising rights.

The article begins by establishing the disability justice framework and its critique of the disability rights movement as both insufficiently intersectional and insufficiently transformative. The article then examines the multiple ways that the immigration system is ableist and disabling: from categories like public charge that have always explicitly valued and devalued individuals based on ability/disability, to restrictions that force immigrants to make an often-disabling journey from Central America to the southern border, to white nationalist rhetoric and policy that deter immigrants from seeking healthcare. The article turns to disability law, and explains how the interaction of an immigration system (which punishes accessing services) and disability law (which often frames access to services as either an end goal of, or a core component of, disability rights) work together to maintain ableist oppression. At the same time, the article centers narratives of Latinx immigrants across multiple contexts that highlight individual and collective action to secure care and support outside of formal legal frameworks.

In addition to making a theoretical contribution, this article is informed by the author’s experiences in civil legal aid clinics, supporting clients as they run up against multiple legal and practical barriers to accessing services to which the law entitles them. One goal of the article is to open a conversation among civil legal aid practitioners, who often represent disabled and undocumented clients on matters that are explicitly related neither to disability nor to immigration, and pushes them toward a more transformative understanding of their work. To that end, this article is explicitly addressed to practitioners and concludes with a list of suggestions for re-framing approaches to civil legal aid.

Laura Waldman

Volume 26.2 (download PDF)

Abstract

Since the early years of colonization, Native American people have engaged in continuous legal struggles for land and sovereignty, which have exposed the colonial underpinnings and white supremacist worldview that are the root cause of their ongoing subjugation. In modern times, that often takes the form of government-backed corporate control over natural resources. This note traces the historical links from treaty violations by early white settlers for the purpose of usurping plantation land and gold, to recent incursions by companies building unwanted oil and gas pipelines on Native American lands.

Both then and now, using law as a tool of resistance has had varying results. On the one hand, there are countless instances where the law has been used as a weapon against Indigenous sovereignty, for example allotment leveraged property law to further divide Native American lands, as well as Native American people from their land. The European conceptions of how property ought to be used, enshrined in laws that require land claims to be exclusive, have consistently deprived Native American nations of decision-making over their lands. On the other hand, some treaties have been successful in ensuring enforcement of environmental protections on Indigenous land.

Moreover, the framework that forms the basis for many rights, that tribal membership is a political rather than a racial designation, has been reaffirmed by the Supreme Court. And, though recent judicial efforts to undermine the protective relationship the federal government has with Native American nations have been successful, there is room for deeper understandings of Native American sovereignty to emerge into law—understandings based on inherent, rather than relational sovereignty.