Document Type


Publication Date



In this Commentary, Professor Katherine Franke offers an analysis on Richard Delgado and Jean Stefancic's California's Racial History and Constitutional Rationales for Race-Conscious Decision Making in Higher Education and Rebecca Tsosie's Sacred Obligations: Intercultural Justice and the Discourse of Treaty Rights. These two Articles, she observes, deploy history for the purposes of justifying certain contemporary normative claims on behalf of peoples of color: affirmative action in higher education for Delgado and Stefancic, and sovereignty rights for native peoples in Tsosie's case. Franke explores the manner in which stories of past conquest and discrimination contribute to contemporary conceptions of racial and ethnic identity and status, which in turn form the basis of rights claims. Drawing from sociological distinctions between remembrance, memory and history, Franke suggests that legal claims for amends prospectively demand more than reference back to an ignoble past, and she cautions against strategies that ground a right to redress in the status of people of color. Similarly, she examines the manner in which postcolonial arguments that seek to reinvigorate claims to sovereignty for native people run the risk of fetishizing the primitive.


Civil Rights and Discrimination | Law | Law and Race | Legal History


This article was originally published in UCLA Law Review.