The death of distinguished historian Eugene D. Genovese on September 26 led me to reflect on both his scholarly accomplishments and his intellectual and political thought. No book inspired me more as a graduate student than Genovese’s Roll, Jordan, Roll (1975), but Genovese’s sharp turn to the right in his later years was troubling indeed.
I recently had the pleasure of doing some in-depth research regarding Title VI and Title VII discrimination claims under the Civil Rights Act of 1964 (CRA), paying particular attention to the phrase “national origin.” Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (2000); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (2000). Faced with broad yet profound research inquiries, I spent hours poring over material, and began to note a rather interesting strand of debates that involved a single question: does the CRA’s prohibition against national origin discrimination also prohibit language discrimination?
Not a novel question, and yet it is a reflection of today’s growing social and political concerns. Thousands of legal professionals have wrestled with the implications behind allowing an individual’s native language to provide the basis for legal action in situations of discrimination. We continue to presumably draw on the following logical inference — discrimination against my language, in essence, discriminates against my culture, my national heritage, which ultimately amounts to an affront to my civil rights.
Setting the legal question aside, I became heavily acquainted with this term: LEP, as in Limited English Proficiency.
Federal Indian Law—the legal provisions and doctrines governing the respective statuses of, and relations among, the federal, state, and tribal governments—is replete with seeming anomalies when compared to the background of typical domestic law in the United States. Such anomalies or aberrations, though frequently noted, have seldom if ever been systematically delineated in cases or in legal scholarship. The purpose of this and succeeding blog posts is to identify and examine several of these anomalies, the hope being that readers will gain a better sense of the unique topography of Federal Indian Law and at least some of the reasons that have brought it about.
Examined in this first post will be one such apparent anomaly, namely, the permissibility of the government’s differential treatment of Indian tribes and their members despite the U.S. Constitution’s guarantee of equal protection. This issue goes to the heart of Federal Indian Law, which is largely embodied as statutes in Title 25 of the U.S. Code (denominated “Indians”) and implemented through rules and regulations in Title 25 of the Code of Federal Regulations (also denominated “Indians”). To the extent that the classification of “Indian” ordinarily if not always includes a component of race, ethnicity, ancestry, or perhaps national origin, its use in the federal Code and Regulations—including its derivative use in judicial opinions—would seem presumptively to run afoul of constitutional as well as statutory proscriptions against discrimination on the basis of race, ethnicity, ancestry, and the like. After all, were one to encounter a Title of the U.S. Code designated “African Americans” or “Latinos” or “Germans,” an eyebrow, if not two, would almost certainly be raised in response.