Abstract

Excerpted From: Mark C. Grafenreed, Open Hunting Season: Black Bodies as a Threatened Species, 30 Cardozo Journal of Equal Rights & Social Justice 341 (Winter, 2024) (220 Footnotes) (Full Document)

Alabama beach mice, Carolina northern flying squirrels, Florida panthers, pygmy raccoons, jaguars, red wolves, kangaroo rats, grizzly bears, tigers, Canadian lynx, black-footed ferrets, whooping cranes, northern long-eared bats, giant sea bass, ridley sea turtles, and California condors all share one thing in common: they receive federal protection because of their threatened or endangered species status. The United States Congress (“Congress”) promulgated the Endangered Species Act of 1973 (“ESA [Endangered Species Act of 1973]”) with the express purpose of protecting and conserving wildlife species in danger of, or near, extinction. Nearly 1,500 species benefit from the ESA [Endangered Species Act of 1973]'s protections today.

Ta'Kiya Young, Tyre Nichols, Roberta A. Drury, Margus D. Morrison, Andre Mackneil, Aaron Salter, Geraldine Talley, Celestine Chaney, Heyward Patterson, Katherine Massey, Pearl Young, Ruth Whitfield, Eric Garner, Michael Brown, Tamir Rice, Trayvon Martin, Freddie Gray, Sandra Bland, Breonna Taylor, Atatiana Jefferson, Ahmaud Arbery, George Floyd, Jacob Blake, Jayland Walker, and so many others similarly share one thing in common: they represent a “catalogue of oppression” of Homo sapiens with Black bodies who did not receive similar federal protection. The protections afforded by the ESA [Endangered Species Act of 1973] offer a striking contrast with the historical, legal, and cultural experiences of Black bodies held in bondage and relegated to  subhuman status, a source of moral dissonance in American society to the present day.

As Congress has strengthened the ESA [Endangered Species Act of 1973], offering further protection to endangered and threatened wildlife species, Black populations face mounting threats. There were nearly 2,300 shootings from 2022 to 2023 where law enforcement officers have injured or killed a suspect subject, and many of these have been perpetrated against marginalized communities. For many, it remains an “open hunting season” on Black bodies as these endemic horrors represent only the latest in a continuous sequence of still-frame images of racial violence indelibly etched onto the psychological reels of Black minds. When comparing the ESA [Endangered Species Act of 1973]'s statutory language to the daily realities of Black bodies, they are an unprotected, threatened species, a tragedy for which America is criminally liable.

While the ESA [Endangered Species Act of 1973] fails to extend protection to threatened members of the human species, other federal legislation has sought to fill this legal lacuna. The George Floyd Justice in Policing Act of 2021 (“GFA [George Floyd Justice in Policing Act of 2021]”), federal legislation aimed at improving how government actors protect and serve their citizens, is a prototype. The GFA [George Floyd Justice in Policing Act of 2021], arguably a conservation act, among other things, “establishes a framework to prevent and remedy racial profiling by law enforcement at the federal, state, and local levels.” Regrettably, this legislation was introduced only in the aftermath of another watershed moment in American history: the heinous murder of George Perry Floyd, Jr., a Black male, by White Minneapolis police officer Derek Chauvin on May 25, 2020. To deconstruct racial binaries, these acts of violence are sometimes an inside job. This would be the case involving the senseless murder of Tyre Nichols, a Black male, on January 10, 2023, at the hands of five Black Memphis police officers. Viral images and videos of these killings, reminiscent of public lynchings in previous centuries, have sparked global outrage. Yet, this legislation is “in danger of or near extinction” in the U.S. Senate, where Democrats have slowly lost the majority since 2009 and currently are the minority.

How does Congress almost unanimously pass the ESA [Endangered Species Act of 1973] yet completely stall on the GFA [George Floyd Justice in Policing Act of 2021] if life conservation is the common goal? The contrast between the ESA [Endangered Species Act of 1973] and the GFA [George Floyd Justice in Policing Act of 2021] offers a prime test case to elucidate the purpose and significance of Critical Race Theory (“CRT”). CRT provides a scholarly legal framework, tracing and analyzing ways race, racism, and racial inequality are facilitated and maintained. CRT also scrutinizes and interrogates how historical and contemporary events have perpetuated the inequalities so effortlessly today. Thus, this Article's central claim is that, when juxtaposing the federal protections, the ESA [Endangered Species Act of 1973] currently offers wildlife species vis-à-vis those the GFA [George Floyd Justice in Policing Act of 2021] seeks to provide to BlackHomo sapiens, CRT illuminates how the American legal system commits inchoate crimes of conspiracy to perpetuate the “threatened” status of Black bodies.

I. Caveats and Concessions

It is critical at the outset to outline what this Article seeks to avoid and accomplish, necessitating certain caveats and concessions to set a foundational framework for what follows. First, despite contrariwise historical, cultural, and legal arguments, this Article does not propose that Black bodies are a separate or different “species.” All human beings (Homo sapiens) are members of a common species of primates. Second, this Article does not prescribe a Black universalism, which is rightly a matter of self-definition, self-determination, and self-amendment. However, the presentation of Black bodies has been one of legal and historical subjugation, objectification, and commodification. Third, this Article does not argue that Black bodies are “endangered” as defined within the purview of the legislation reviewed herein since their population numbers are in the tens of millions in America. Fourth, this Article does not suggest that only Black bodies are threatened; instead, it claims that Black bodies are disproportionately threatened vis-à-vis other bodies. Fifth, this Article concedes that the ESA [Endangered Species Act of 1973] was nonexistent during the four centuries of North American slave trade. Thus, its analysis and application here are metaphoric and retroactive, considering Black bodies' historical and existential realities while highlighting Congress's lawmaking capacity and power. Finally, racial categories are inherently problematic and biologically indefensible. Race is a social and legal construction in which the courts have played a significant role. “Black” and “White” will be used here with the understanding of the former being people of African descent and the latter being people of European descent living in the United States and beyond. These categories will be capitalized except for when in a direct source quote.

Positively, this Article endeavors to accomplish a few goals. First, it utilizes CRT as a tool to demonstrate, through federal legislation, the government's complicity in the disparate treatment of Black bodies. Next, this Article seeks to show that Black bodies remain a “threatened population” despite their sacred value and worth. It affirms that, from a bibliocentric perspective, God declares creation to be “very good” after humanity is created. Before this moment, creation is “good.” Thus, all human beings reflect the imago Dei and are of sacred value and worth deserving of dignity and respect. Finally, it seeks to establish that “threatened population” might be the more appropriate designation for Black bodies since the word “population” alone fails to convey the truths that making symbolic connections to the ESA [Endangered Species Act of 1973] highlights.

[. . .]

“Our nation is moving toward two societies, one black, one white- separate and unequal.” This is evident in legislative disparities. As previously argued, Congress and state legislatures have enacted and named several laws to protect White bodies. On the other hand, few corresponding laws are named for Black bodies. In response to the 1968 Kerner Report, the federal government rejected many of the same recommendations the GFA is currently proposing. Thus, it should come as no shock that the GFA, named after another Black male, sacrificed on the altar of America, has completely stalled.

There may be prognosticators or antagonists who might suggest the GFA will not protect Black bodies. Whether the GFA offers protection remains mere conjecture and speculation as the act dies in dormancy on Capitol Hill. What is known, though, is that, without the GFA, there is little hope of holding state actors accountable or for Black bodies being federally protected in the same manner as White American citizens. Unfortunately, Black bodies cannot reasonably look to their government for protection, particularly a government that has never fully contemplated such protections from this nation's inception.

These failed protective systems also have biblical precedents in the Exodus narrative previously discussed. Similarly, in this country, Black bodies, particularly Black boys, inhale the threat of a death sentence with their first breath. As James H. Cone observed, “[w]here there is no justice in the land, a man's freedom is threatened[.] When a man has no protection under the law, it is difficult for him to make others recognize him, and thus his freedom to be a ‘Thou’ is placed in jeopardy.” Reverend Dr. Martin Luther King, Jr., further stressed the importance of “Thou,” noting:

From time immemorial men have lived by the principle “that self-preservation is the first law of life.” But this is a false assumption. I would say that other-preservation is the first law of life. It is the first law of life precisely because we cannot preserve self without being concerned about preservation of other selves. The universe is so constructed that things go awry if men are not diligent in their cultivation of the other-regarding dimension. “I” cannot reach fulfillment without “thou.”

To combat this threatened status, Black bodies must fortify the “Thou.” The “Thou” continues to sustain them: the Black infrastructure, including Black churches, Black families, Black communities, Black businesses, Black heritage, Black minds, Black bodies, Black souls, Black diversity, and Black excellence. Strengthening the “Thou” will remind them of the “I,” where their identity, dignity, and authority are rooted in the imago Dei, the sole source of protection for people who continuously face the snares and traps set for them and whose status remains threatened.

Ph.D. Candidate in Religion and Culture, Graduate Program in Religious Studies, Southern Methodist University, expected May 2026; J.D., Thurgood Marshall School of Law, Texas Southern University (2003); licensed Texas attorney.