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Abstract:
Modern equal protection doctrine treats laws that make distinctions on the basis of indigeneity defined on blood quantum terms along a racial versus political paradigm. This dichotomy may be traced to Morton v. Mancari and, more recently, to Rice v. Cayetano. In Mancari, the Supreme Court held that laws that privilege members of American Indian tribes do not constitute racial discrimination because the preferences have a political purpose - to further the right of self-government of federally recognized American Indian tribes. Rice crystallized the juxtaposition of the racial from the political nature of indigeneity by invalidating a law that privileged Native Hawaiians. That law, according to the Court, used an ancestral blood requirement to construct a racial category and a racial purpose as opposed to the legally permissible political purpose of promoting the right of self-government of American Indian tribes.

Close analysis of the dichotomy between the constitutive notion of indigenous blood as either racial or political has largely escaped scholarship. An analysis deconstructing their juxtaposition is sorely needed. As recent challenges to blood quantum laws show, there remain unanswered questions about the extent to which the racialized (and thus invalid) Native Hawaiian-only voting law impact other blood quantum laws. Among the laws implicated by the dichotomy between the racial and political meaning of indigeneity are land ownership laws that privilege indigenous peoples who are not federally recognized tribes. Specifically, in some jurisdictions in the United States, including Hawaii, Alaska, and the U.S. territories, only indigenous peoples may purchase or possess property. Perhaps more problematically, these property laws define indigeneity on the basis of blood quantum. Under the contemporary race versus political meaning of blood quantum, these laws arguably violate equal protection principles because they do not fit the current framing of what constitutes political indigeneity.

Using these laws, what I collectively refer to as blood quantum land laws, as frames of reference, this Essay interrogates and criticizes the juxtaposition of the racial and political meaning of indigeneity. Specifically, the Essay examines the legal construction of political indigeneity and demonstrates how its narrowed construction would undermine these blood quantum land laws that were enacted to reverse the effects of colonialism. Consequently, this Essay calls for the liberalization of the binary racial and political paradigm by expanding equal protection law's interpretation of the meaning of political indigeneity. Toward this end, this Essay provides an initial analysis of how to broaden the political notion of indigeneity, focusing in particular on the relationships among property, indigeneity, and the right to self-determination.

property, property theory, equal protection, race, indigenous peoples, critical theory, civil rights

Abstract:
The word sanctuary has recently received significant attention in the political arena and is likely to receive further examination as calls for stricter enforcement of immigration law continue. But what precisely is a sanctuary, particularly in the context of today's immigration issues?

In this symposium Article, I initiate possible approaches to developing an answer. First, I argue that a starting point for defining the contemporary meaning of sanctuary requires an examination of its public and private dimensions. Laws, resolutions, and policies that have created what I refer to here as public sanctuaries must be differentiated from programs and services that are provided within private sanctuaries. Both types of sanctuaries have different goals and, importantly, they implicate distinct legal issues. Second, determining what constitutes a sanctuary requires an analysis of its discursive deployment, particularly the shift in its utilization from a primarily morally-based posturing in the 1980s to its more critical characterization today. Closer analysis of the defensive discourse of the word sanctuary would not only lead to a more robust understanding of sanctuary's meaning today but also raise normative legal and policy questions that attend to immigrants' rights. Specifically, given the social and political costs associated with the term sanctuary, it may well be time to reconsider its rhetorical utility in creating safe havens for immigrants.

immigration law, sanctuary

Abstract:
In this short piece, Professors Chang and Villazor respond to a recent article by Professors McGowan and Lindgren, which presents empirical data that they claim tends to disprove the model minority hypothesis with regard to Asian Americans. McGowan and Lindgren's article is timely in light of the debate over school admissions and affirmative action and the role that Asian Americans play but we argue that their conclusions are not warranted because of the limited nature of their inquiry. They limit the scope of their analysis to the results of surveys of non-Hispanic whites produced from face-to-face about their racial attitudes. From this, they make claims about the real world. They support their claim with graphs and statistical analyses, consistent with the recent empirical turn in legal scholarship. Their data and conclusions are likely to be used by those who seek to end affirmative action and who seek to use school admissions and affirmative action as wedge issues to create divisions among Asian Americans and to divide Asian Americans from other racial minorities. Closer scrutiny of their analysis reveals, however, the questionability of their findings. We argue that the real world is a place where people lie, where people are unaware of their biases, and where conscious and unconscious biases may not be clear or manifest themselves outside of particular contexts or situations. The result is that the work of Asian [sic] critical scholars on the model minority myth says much more about the real world than do McGowan and Lindgren and raises doubts about their empirical methodology.

Abstract:
After a long history of overt discriminatory practices in health care, people of color, immigrant and poor communities continue to struggle with unequal access to quality health care. The reasons for inequality in health care include, among other things, language barriers. In the wake of Alexander v. Sandoval, health and civil rights advocates have looked to alternative strategies for improving access to health care for marginalized communities. Community lawyering, which combines legal recourse with community organizing, addresses inequalities in health care by forcing hospitals and clinics to improve services to people in their communities. This Article undertakes a critical examination of community lawyering's potential for improving access to health services for marginalized communities, examining its advantages and limitations as a tool for social, legal and cultural change.

civil rights, immigrants rights, language rights

Abstract:
Federal statutory protection of language rights developed through the Civil Rights Act of 1964 - particularly § 601 of Title VI, ensuring LEP people access to federally funded services and programs - and Lau v. Nichols, which established a private right of action to enforce the disparate impact regulations of Title VI. Importantly, both the Civil Rights Act and Lau recognized the connection between language barriers and inequality. The Supreme Court's decision in Alexander v. Sandoval, however, weakened the language rights established in Lau by depriving plaintiffs of a private right of action in cases brought under a theory of discriminatory impact. This Chapter examines the rollback of civil rights in Sandoval from the perspective of language minorities, particularly the negative impact on healthcare for LEP people. The Chapter illustrates how the Sandoval opinion inflicted harm on the rights of language minorities by limiting the ways that LEP patients can enforce their right to equal access to health care. It contends that post-Sandoval, the two options that remain available to LEP people who experience unequal access to health care services are inadequate and not necessarily effective. Consequently, Sandoval has limited the ability of language minorities to gain access to basic services or to privately enforce their rights, and has left them vulnerable to continued bias in health care.

civil rights, immigrants rights, language rights, access to health care

Abstract:
Modern equal protection doctrine treats laws that make distinctions on the basis of indigeneity defined on blood quantum terms along a racial versus political paradigm. This dichotomy may be traced to Morton v. Mancari and, more recently, to Rice v. Cayetano. In Mancari, the Supreme Court held that laws that privilege members of American Indian tribes do not constitute racial discrimination because the preferences have a political purpose - to further the right of self-government of federally recognized American Indian tribes. Rice crystallized the juxtaposition of the racial from the political nature of indigeneity by invalidating a law that privileged Native Hawaiians. That law, according to the Court, used an ancestral blood requirement to construct a racial category and a racial purpose as opposed to the legally permissible political purpose of promoting the right of self-government of American Indian tribes.

Close analysis of the dichotomy between the constitutive notion of indigenous blood as either racial or political has largely escaped scholarship. An analysis deconstructing their juxtaposition is sorely needed. As recent challenges to blood quantum laws show, there remain unanswered questions about the extent to which the racialized (and thus invalid) Native Hawaiian-only voting law impact other blood quantum laws. Among the laws implicated by the dichotomy between the racial and political meaning of indigeneity are land ownership laws that privilege indigenous peoples who are not federally recognized tribes. Specifically, in some jurisdictions in the United States, including Hawaii, Alaska, and the U.S. territories, only indigenous peoples may purchase or possess property. Perhaps more problematically, these property laws define indigeneity on the basis of blood quantum. Under the contemporary race versus political meaning of blood quantum, these laws arguably violate equal protection principles because they do not fit the current framing of what constitutes political indigeneity.

Using these laws, what I collectively refer to as blood quantum land laws, as frames of reference, this Essay interrogates and criticizes the juxtaposition of the racial and political meaning of indigeneity. Specifically, the Essay examines the legal construction of political indigeneity and demonstrates how its narrowed construction would undermine these blood quantum land laws that were enacted to reverse the effects of colonialism. Consequently, this Essay calls for the liberalization of the binary racial and political paradigm by expanding equal protection law's interpretation of the meaning of political indigeneity. Toward this end, this Essay provides an initial analysis of how to broaden the political notion of indigeneity, focusing in particular on the relationships among property, indigeneity, and the right to self-determination.