48 Children’s Legal Rights Journal [Vol. 36: 1 2016]
clearly more that we as a society can do to address these issues and ensure that all youth receive
fair treatment, especially where the racial disparity for certain groups of marginalized youth in the
justice system seems to be worsening, tempering the positive effects of the drop in crime.
II. IDENTIFYING RACE
A. Defining Terms: What is Meant by the Term “Race”?
Race relates to physical characteristics and groups of people who share similar and distinct
19 Comparatively, culture relates to the identities that we form based on where and
how we are raised, “that complex whole which includes knowledge, belief, art, morals, law,
custom, and any other capabilities and habits acquired by man as a member of society.”
scholars question whether “race” even exists,
21 while others point to rudimentary differences
between race and culture to underscore the difference between the two, including: 1) that a person
can potentially change or affect her culture, but cannot decide the race into which she is born; 2)
that culture is related to behavior and environment and can be—but is not always tied to—race;
and 3) that race usually refers to one’s looks, such as the color of his or her skin, whereas culture
extends to behavior, dress and actions, often influenced by one’s environment.
B. Does Indigeneity Differ from “Race”?
Just as race and culture differ, there is also a distinction between race and indigeneity,
which might be overlooked in the American context.
23 While the concepts of race (and ethnicity)
predecessor, the Children in Custody (CIC) Census, to offer a statistical overview of juveniles in corrections. Statistics
are collected for the following crimes: Murder, Forcible Rape, Robbery, Aggravated Assault, Burglary, Larceny-theft,
Motor Vehicle Theft, Arson, Simple Assault, Vandalism, Law Violations, Drug Abuse Violations, Driving Under the
Influence, Liquor Law Violations, Drunkenness, Disorderly Conduct, Curfew and Loitering, Running Away. Office
of Juvenile Justice and Delinquency Prevention, Statistical Briefing Book: Law Enforcement and Juvenile Crime, U.S.
DEP’T OF JUST., http://www.ojjdp.gov/ojstatbb/crime/jar.asp (last visited Apr. 23, 2015).
19Audrey Smedley, “Race” and the Construction of Human Identity, 100 AM. ANTHROPOLOGIST 690-702 (1998).
20EDWARD BURNETT TYLOR, PRIMITIVE CULTURE: RESEARCHES INTO THE DEVELOPMENT OF MYTHOLOGY,
PHILOSOPHY, RELIGION, ART, AND CUSTOM
1 (1871). See also Culture, CAMBRIDGE DICTIONARY (defining “culture”
as “the way of life, especially the general customs and beliefs of a particular group of people at a particular time.”),
http://dictionary.cambridge.org/us/dictionary/english/culture (last visited Mar. 31, 2015).
21See generally Jeffrey C. Long & Rick A. Kittles, Human Genetic Diversity and the Nonexistence of Biological Races,
75 HUM. BIOLOGY, 449-57 (2003) (explaining that genetic variations include more frequently within socially
constructed racial groups than among multiple different racial groups); Audrey Smedley & Brian Smedley, Race as
Biology Is Fiction, Racism as a Social Problem Is Real, 60 AM. PSYCHOL. 16–26 (2005) (demonstrating that while
there are negligible biological differences between racial groups, the scientific classification of people into racial
groups has social and political consequences); Hua Tang, et al, Genetic Structure, Self-Identified Race/Ethnicity, and
Confounding in Case-Control Association Studies, 76 AM. J. HUM. GENET. 268–275 (2005),
h.gov/pmc/articles/PMC1196372/ (evaluating self-identified race/ethnicity corresponding
highly to genetic cluster categories, showing correlations among genetic variation and race vary widely).
22See e.g., Hector Betancourt and Steven R. López, The Study of Culture, Ethnicity, and Race in American Psychology,
48 AM.PSYCHOL. 629, 631 (1993); PAUL GILROY, AGAINST RACE: IMAGINING POLITICAL CULTURE BEYOND THE
COLOR LINE (1st ed. 2000).
23Morgon Godfrey, The US Can Learn a Lot from New Zealand on How to Embrace Indigenous Cultures, THE
GUARDIAN (Oct. 13, 2014), http://www.theguardian.com/world/2014/oct/13/-sp-new-zealand-teach-us-race-sport-
ceremonies-legal-treaties; BRIAN KLOPOTEK, RECOGNITION ODYSSEYS: INDIGENEITY, RACE, AND FEDERAL TRIBAL
RECOGNITION POLICY IN THREE LOUISIANA COMMUNITIES (NARRATING NATIVE HISTORIES) (2011). See generally
Jeremy Waldron, Who Was Here First? Two Essays on Indigeneity and Settlement, Columbia University Faculty